
    John Meaney, Respondent, v. Wulf Hurwitz, Appellant.
    Second Department,
    November 16, 1906.
    Negligence — res ipsa loquitur — contributory negligence — unexplained fall of awning.
    Even in cases where the doctrine of res ipsa loquitur applies, the plaintiff must show himself free from contributory negligence. ■ ■
    Thus when the plaintiff, while standing under defendant’s awning and engaged in removing heavy planks from a scaffold in a manner which brought them near the framework of the awning, was struck and injured by,a beam falling from said awning, he must give proof showing that the fall of the beam was not caused by negligence of himself'"or fellow-servant.
    Hirschberu, P. J., and Hooker, J., dissented.
    Appeal by the defendant, Wulf Hurwitz, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered upon a decision of the court rendered after a trial without jury.
    
      John T. Smith [F. Angelo Gaynor with him on the brief], for the appellant.
    
      Emanuel S. Cahn, for the respondent.
   Woodward, J.:

The plaintiff was an ironworker, employed by the Brooklyn Rapid Transit Company in making repairs upon its elevated struc-' ture at the corner of Myrtle and'Clinton avenues, in the borough of Brooklyn. With others he was engaged in taking down a scaffolding which had been erected underneath the elevated railroad. ■ He was standing upon the sidewalk in front of premises owned by, and we will assume in the control of, the defendant. One Downey was upon the scaffold, handing down planks from fourteen to twenty feet in length and twelve inches wide and two inches thick, and the plaintiff and one HcDonald were taking these planks as they came down. Two planks had been lowered and the third one was being handed down when a piece of timber, constituting a brace upon an awning frame maintained by the defendant, fell and struck the plaintiff upon the head, causing the injuries for which he is seeking damages. The alleged negligence of the defendant consists, according to the evidence, in not- discovering that this stick of timber, fourteen feet long and two by four inches in size, had rotted at one end, thus allowing it to fall. ■ The case was tried, and the respondent is attempting to sustain the judgment, upon the theory that the mere falling of this timber raises a presumption of negligence as against the defendant, and we are cited to a number of cases in which the doctrine of res ipsa loquitur is applied to the facts of those cases, but it seems to us that none of them is controlling here upon the "evidence as it has been given by the plain ti if’ If the plaintiff had been walking along the street and this timber had fallen on him, without any act cm his part other than walking the street, a different question might be presented. But here the plaintiff and his fellow-servants were at work taking down a scaffolding within from fourteen inches to two and one-half feet of this awning frame ; they were handling heavy planks which appear to have been handled within a few inches of .the frame, and there is not a particle of evidence to show that they had not struck the frame or wrenched it in a manner to loosen the timber. The evidence is absolutely silent upon this point; it is all confined to the fact that they were taking down the planks and that the timber fell, and because there is no evidence of the cause which produced the fall it is urged that the defendant must be presumed to have been negligent in maintaining this timber as a part of the awning frame. It seems clear to us that this is not enough-; the plaintiff was bound to show from the facts and circumstances that the timber did not fall through any act of himself or his fellow-servants, before the foundation for the doctrine of res ipsa loquitur is laid. The mere happening of the accident is never sufficient to raise a presumption of negligence; the facts and circumstances under which the accident occurred are always essential, and here it is far more reasonable to suppose that' this timber was caused to fall by reason of some act of the plaintiff and his fellow-servants than it is to assume that it fell just at that particular moment because of any negligence on the part of the defendant in failing to inspect the timber, and the burden was upon the plaintiff to show the facts and circumstances, so that it' could be fairly said that the accident was not due to any cause outside of the defendant’s negligence. This the evidence does not disclose; from anything which appears in this case the plaintiff himself, in handling' the planks which "had" been passed down to him, may have wrenched' this brace timber loose; he may have been the proximate cause of the accident, and the law imposes on him' the duty of showing absence of contributory negligence in this, as in every case where another is charged with damages.

The judgment appealed from should be reversed and' a new trial granted, costs to abide the event.

Rich and Miller, JJ;, concurred; Hirschberg, P. J., and Hooker, J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs fo abide the event.  