
    Daniel Eades, App’lt, v. Heman Clark, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed November 21, 1887.)
    
    1. Negligence—Master and servant—Burden of proof.
    In an action for damages on account of injuries sustainedby the falling of a rock on the plaintiff while working in a tunnel for the defendant. Held,thaX the burden of proving his own freedom from negligence is as much a part of the plaintiff’s case as is the burden of proving the defendant’s negligence. If he fail to prove -either the one or the other, he does not prove facts sufficient to constitute a cause of action.
    2. Same—Servant must guard against known dangers.
    If the plaintiff knew the dangerous condition of the rock he had no right to rely upon the presumption of the performance of the duties .that defendant owed him of adopting proper and suitable measures of precaution to guard him against the consequences of any danger arising from the unsafe condition of the rock. (Cases distinguished.)
    3. Same—When servant mat rely upon the law imposed duty of MASTER TO PROVIDE SAFE PLACE TO WORK.
    If the plaintiff did not know of the condition of the rock, then he had the right to rely on the obligation put upon the defendant by law. He must either testify that he was ignorant, or the evidence on his own behalf must be such as would warrant the jury in finding that he was ignorant.
    Appeal from a judgment dismissing complaint.
    The action was brought to recover damages alleged to have been sustained by the plaintiff without negligence on his part and through the negligence of the defendant.
    The facts, as shown by the testimony, show that the plaintiff was able-bodied man, thirty-three years old, and in the employ of the defendant on and prior to September 12, 1885. The defendant was a contractor and a party to the contract with the city of New York, under the provisions of the aqueduct act of 1883. The plaintiff was in the defendant’s employ as a “nipper,” i. e., a man whose duty it was to wait upon the miners, carrying them drills, oil, candles and water when they called for them. The plaintiff was not a miner, and was not employed as such. It was his duty to run on errands. The tunnel on the 12th of September, 1885, the day of the accident, was progressing through hard, firm rock; it had been passing through soft, seamy, rotten earth of a very unsafe character, full of seams and loose rock. A part of this was timbered. But it was untimbered from a point seventy or eighty-five feet from the end of the heading up to the breast. This portion of the tunnel was of the same character as the timbered part nearer the opening of the shaft and further from the heading. Its dangerous character had been noticed by some of the miners who were working on the tunnel. They had found it dangerous, and informed the foreman that it was in a dangerous condition. They pointed out the very rock that fell on the plaintiff.
    The miners were told by the superintendent in response to their complaints, that the tunnel was all right. He refused to timber it or take any precautions. The miners themselves partially propped up the roof in various places, but nothing else was done to make it secure.
    On the morning of September 12, 1885, about four or five o’clock, a blast was fired, and the miners were ordered in without any inspection of the condition of the tunnel. After they had been in some time they called for the nipper, the plaintiff. He went in, carrying them oils and candles. After delivering them to the men at work near the breast, and as he was coming out, a rock from the roof, near the side of the heading, fell upon him, striking him on the back as he was in a stooping position and crushed him to the ground.
    He was picked up insensible, and found to have sustained serious injuries.
    
      W. T. Daniel and Robert Sewell, for pl’ff; E. T. Lovatt and Homer A. Nelson, for def’t.
   Truax, J.

—The plaintiff, in an action of this kind, must prove more than negligence of the defendant; he must prove that he, himself, was free from negligence, before he can recover.

This fact the plaintiff failed to prove; he failed to prove that he was ignorant of the condition of the rock, the falling of which injured him.

. The burden of proving his own freedom from negligence is as much a part of the plaintiff’s case as is the burden of proving the defendant’s negligence, and if he has failed to prove either the one or the other, he has not proved facts sufficient to constitute a cause of action. Reynolds v. The N. Y. Central and Hudson River R. R. Co., 58 N. Y., 248; Hale v. Smith, 78 id., 480; Hart v. The Hudson River Bridge Co., 84 id., 56; Becht v. Corbin, 92 id., 658.

The only evidence on this point is the evidence of the Elaintiff himself, to the effect that he could not say whether e had or had not noticed the peculiar and dangerous condition of that portion of the roof that fell on him. This evidence does not come up to the requirements of the law; it does not prove that the plaintiff was ignorant, and in this respect the case now before us differs from the Tilly Foster Case (99 N. Y., 368), where the evidence tended to show, and the jury were warranted in finding, that the plaintiff was ignorant of the dangerous condition of the rock that fell on him.

If the plaintiff had testified that he was ignorant of the dangerous condition of affairs, it would then be left for the defendant to show, first, that he was not ignorant; secondly, if ignorant, that he was negligently ignorant, in which event the plaintiff’s negligence or freedom from negligence would become a question for the jury.

The burden of proving the plaintiff’s negligence should not, in the first instance, be put upon the defendant. ■

If the plaintiff knew of the dangerous condition of the rock, he had no right to rely upon the presumption of the performance of the duties that the defendant owed him of “ adopting proper and suitable measures of precaution to guard him againt the consequence of any danger arising from the unsafe condition of the rock.” If he did not know, then he had the right to rely on the obligation put upon the defendant by the law; but he must either testify that he was ignorant or the evidence on his own behalf must be such as would warrant the jury in finding that he was ignorant. But there is nothing in the plaintiff’s testimony in this case that would warrant the jury in finding that "he was ignorant of the condition of affairs.

The above is, I think, the rule to be adduced from such cases as Laning v. N. Y. Central R R Co. (49 N. Y., 521); Gibson v. Erie Railway Co. (63 N. Y., 449); Leonard v. Collins (70 N. Y., 90); DeForest v. Jewett (88 N. Y. 264).

There are certain cases which it is claimed are authorities for the proposition that the burden of proving the plaintiff’s knowledge is upon the defendant.

Of this class of cases is Niven v. The City of Rochester (76 N. Y., 619); Plank v. The N. Y. Central and Hudson River R. R. Co. (60 N. Y., 607) Williams v. Del., L. and W. R. R. Co. (39 Hun, 430), and Pantzar v. The Tilly Foster Iron Mining Co., above referred to.

These cases are not authorities for such a proposition.

The Plank Case is not correctly reported; see DeForest v. Jewett (88 N. Y., 269), from which last case it appears that the person injured, as a matter of fact, had no knowledge of the defect in the thing through which he had been injured.

In the Niven Case, while the person injured had at one time knowledge that the sidewalk was in a bad condition, yet she was ignorant of the particular defect (a hole in the sidewalk) that caused her injury; moreover she was walking carefully.

In Palmer v. Dearing (93 N. Y., 7) the plaintiff knew of the defect that caused her injury, but she had been told a day or two before by the defendant’s agents that the defect would be repaired, and, at the time of the accident, she supposed that it had been repaired. In other words, she was then ignorant of the defect. Whether the plaintiff was or was not ignorant of the thing through which he was injured was one of the questions in dispute in Williams v. The Del. L. and West. R. R. Co., and, therefore, the question of plaintiff’s contributory negligence was rightly left to the jury.

We have also seen that in the Case of Pantzar v. The Tilly Foster Iron Mining Company the evidence showed that the plaintiff was ignorant of the defect.

This view of the law renders it unnecessary for us to consider the question raised by the rejection of certain evidence offered by the plaintiff, and that evidence tended only to prove the negligence of the defendant.

The judgment appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.  