
    Edward Hollander, Respondent, v. Charles I. Hudson and Sarah E. K. Hudson, Appellants.
    First Department,
    July 11, 1912.
    Master and servant—negligence—injury from fall of marble column —res ipsa loquitur—master not insurer of employee’s safety.
    Where in an action by the plaintiff, a decorator, to recover for injuries sustained by the falling of a marble column, it appears that the column had stood in the same position in defendant’s house for several years; that it had never before fallen, and there is no proof that it was dangerous or what caused it to fall, the doctrine of res ipsa loquitur does not apply.
    The defendants were not insurers of the plaintiff’s safety. They were only bound to exercise reasonable care.
    Appeal by the defendants, Charles I. Hudson and another, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1912, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on thé same day denying the defendants’ motion fór a new trial.
    
      John Godfrey Saxe, for the appellants.
    
      Nathan D. Stern, for the respondent.
   McLaughlin, J.:

The plaintiff is a decorator, and in response to a request of the defendants, or one of them, called at their residence to do certain work and was shown into a room called the conservatory or palm room. This room was eighteen feet nine inches long, seven feet two inches wide, with two feet of the width taken up by a plant shelf running the whole length of the room. Above the shelf was a window which also extended nearly across the width of -the room and at or near either side of which stood two marble columns. Each column was nine and one-half inches at the base, six feet ten inches in height, and the column was fastened to the base by an iron rivet. While the plaintiff and one of the defendants were in this room, standing near the window, one of the columns fell, striking plaintiff and injuring him, for which he brought this action to recover the damages alleged to have been sustained.He had a verdict for a substantial amount, on which judgment was entered, from which, and an order denying a motion for a new trial, defendants appeal.

I am of the opinion that the judgment must be reversed as against the evidence. The column had stood in the position where it was when it fell for several years. It had never before fallen and there was no proof that it was dangerous, insecure or defective, or what caused it to fall. The court charged the jury that “there appears to be, from the testimony of the plaintiff, no evidence whatever as to what caused that column to fall.” All there is, therefore, to sustain the verdict is the fall itself.

It is sought to sustain the judgment on the theory — and this is the theory on which the case was submitted to the jury — that the doctrine of res ipsa loquitur applies. It does not apply. The action is based upon- defendants’ negligence, and the mere fall of the column, nnaccompanied by proof of any other fact or circumstance connected with it, is insufficient to sustain a finding of negligence. All that the phrase “ res ipsa loquitur ” (the thing speaks for itself) means is that proof of the attendant circumstances upon an accident is itself of such a character as to justify a jury, if unexplained, in inferring negligence as the cause. (Griffen v. Manice, 166 N. Y. 188.) The attendant circumstances which justify the inference must be proved and not left to mere speculation. And when proved it must appear that the inference sought to be drawn is the only one which can reasonably and fairly be drawn therefrom. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) An unusual occurrence resulting in injury does not, any more than the mere happening of an accident, per se, raise a presumption of negligence. (Eaton v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 267.) This is the general rule, to which, it is true, there are exceptions — for instance, where the relation of carrier and passenger exists or injuries to travelers in the public streets.

The defendants were not insurers of the plaintiff’s safety. The duty they were under to him was to exercise reasonable care for his safety while upon their premises. The record is entirely barren of any evidence tending to show neglect upon their part.

If these views be correct, then it follows that the court erred-in not dismissing the complaint at the close of plaintiff’s case, or directing a verdict in favor of the defendants at the close of the whole case. Proper exceptions were taken in each instance by the defendants, and also to the charge of the court in permitting the jury to find the defendants negligent from the fall of the column alone.

The judgment and order appealed from are, therefore, reversed and a new trial ordered, with costs to appellants to abide event.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  