
    Lena Millie, Plaintiff, v. The Manhattan Railway Co., Defendant.
    (New York Common Pleas
    General Term,
    January, 1895.)
    Plaintiff was injured by a fail on the stairs of one of defendant’s stations, alleged to have been caused by the rubber covering of one of the steps being loose. No witness testified to seeing her fall, and there was no direct proof that the rubber was loose before the accident. Held, that the complaint was properly dismissed. »
    The fact that a nail was found on the step below the loose rubber on the day following the accident and another sticking upright in the rubber is insufficient to show that they were in the same positions at the time of the accident.
    The fact that the nails were rusty is insufficient to justify an inference that the rubber had been out of repair for a sufficient length of time to impute notice to defendant, in the absence of proof as to the extent of the rust when they were found, that rusty nails are more likely to draw out of wood than others, or that nails driven in green wood will not rust while securely in place.
    A carpenter is not qualified as an expert to testify whether a heel striking a nail would pull it out or whether persons not carpenters could tell whether a nail was loose by mere inspection.
    Motion for a new trial under an order made at trial term dismissing the complaint,'and directing the exceptions taken by the plaintiff to be heard in the first instance at general term. For opinion at trial term see 5 Mise. Eep. 304.
    
      Roger Foster, for plaintiff.
    
      Fd/ward B. Thomas, for defendant.
   Bookstaver, J.

This' action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, whereby she was caused to fall down the stairs of the station at Fifty-ninth street and Ninth avenue, receiving, as is claimed, permanent injury. The action was twice tried before the same justice, who, on the first trial, submitted certain questions of fact to the jury, who were unable to agree upon a verdict. Hpon the second trial the justice dismissed the complaint, directing the exceptions to be heard at General Term in the first instance. The learned judge who tried the case, on. dismissing the complaint, delivered an exhaustive opinion on the main questions involved in the action, and we do not think it is necessary to add anything to what he has there so well said upon those points.

But upon this motion the plaintiff has argued that the learned judge overlooked the fact that two nails, claimed to be from the stairway, were offered in evidence, and that the condition of these nails was such as to warrant the court and ■jury in finding that the rubber on the stairway had been in a dangerous condition for a sufficient length of time to impute notice thereof to the defendant. The first difficulty with this contention is that there is absolutely no proof that these two nails were of the size and character of those generally employed in fastening the rubber to the stairway. The witness producing these nails testified that he found one of them on the step below the loose rubber the day after the accident, and the other he found standing upright and sticking in the rubber at the loose place. The stairways of the elevated railroad are so frequently swept, in order to keep them passably clean, that it seems almost impossible that a nail, such as this, could have lain upon those steps undisturbed from twelve o’clock noon on one day to seven or eight o’clock on the morning of the following day; and the constant use of the stairway by passengers ascending and descending almost precludes the possibility of the nail sticking up in the rubber, as claimed by the witness, to have remained there for any length of time without being knocked out. On the argument, plaintiff’s counsel claimed that these nails were worn on the top, and were very rusty. But there is no proof in the case as presented as to how rusty these nails were at the time they were secured by the witness. Nor is it shown by the evidence that rusty nails are more likely to come out of wood than those which are not. Nor is there any evidence that nails, if driven in green wood, would not rust while securely in their place. Nor is there proof that nails securely driven home, even in dry wood, where such wood is exposed to the elements, will not rust while in that position. And we are, therefore, of opinion that this circumstance adds nothing to the facts from which the jury could hy fair inference conclude that the rubber had been out of repair for a sufficient length of time to impute notice to the defendant. This case is not at all analogous to Van Tassell v. R. R. Co., 1 Misc. Rep. 299, where the step causing the injury was fully identified, and the fracture showed by the coloring of the edges that it had heen in a dangerous condition for a considerable period of time. Nor is, it like Jones v. R. R. Co., 28 Hun, 364 ; 92 N. Y. 628, where it was held that the appearance of the iron rung of a ladder used in connection with a freight car and from which plaintiff’s intestate had fallen, bent and dented, with the broken ends partly bright as though recent and partly rusted as though old, justified the jury in assuming that the defect had existed for a sufficient length of time to have enabled the defendant to discover and repair it had it exercised reasonable diligence to ascertain the condition of the ladder. The facts in this case are much more analogous to De Graff v. R. R. Co., 76 N. Y. 128, where it was held the master may not be held responsible for a mere defect in machinery without proof of negligence on his part, and that his negligence will never be presumed; and to Henkel v. Murr, 31 Hun, 28 ; McNally v. City of Cohoes, 127 N. Y. 350 ; Turner v. City of Newburgh, 109 id. 301 ; Kunz v. City of Troy, 104 id. 344.

Besides all that has been said by the learned justice who tried the case in relation to the rubber, we fail to see, how that could have produced the injury complained of, even if it were as bad at the time the plaintiff slipped and fell as it was on the following day or when the rubber was examined. From the testimony in the case it would appear that the edge of the rubber, which was loose, was against the iron guard on the front edge of the tread. This, if slightly elevated, might cause a person to slip going up the stairs if his toe caught in it, but it is impossible to conceive .how any one going down could catch the heel of the shoe in such a place, as the weight 'of the foot pressing upon the rubber would naturally press it closely against the tread. But if the loose edge of the rubber was furthest from the edge of the .tread and near the riser, then it is equally impossible to believe that the foof could have been caught in it, as the overhang of the tread above, would bring the heel of the shoe beyond the edge of the rubber.

The plaintiff examined one Boss, a carpenter, as a witness, and asked him certain questions as an expert, with the object of showing (1) a safe way of nailing down rubber treads; (2) whether rusty nails get loose; (3) whether a heel could loose a nail firmly driven; (4) whether a loose nail could be detected by inspection; (5) whether a nail which could be pulled out by the heel of a boot, or one’s fingers, must have been loose for any period before, and (6) whether the heads of the nails show that they had been exposed and trodden on. As to some of these questions, they were excluded on the express ground that there was no evidence in the case on which to base the questions propounded; others of them were matters of common knowledge, which is never the subject of expert evidence (Schaffer v. Evans, 33 Cal. 32) ; and the remainder of them related to the safety or danger of a structure, and in cases of that character expert testimony is inadmissible. Hart v. H. R. Bridge Co., 84 N. Y. 56 ; McDonald v. State, 127 id. 18 ; Harley v. Buff Car Mfg. Co., 142 id. 37 ; Swartout v. R. R. Co., 7 Hun, 571. As before said, there was no evidence that the nails were rusty, and of the other matters the jury could judge as well as the witness. We do not see how it is possible that a carpenter, from his "peculiar knowledge,, could tell whether a heel striking a nail would pull it out or not, nor would his peculiar knowledge enable him to say whether others, not carpenters, could tell whether a nail was loose or not by mere inspection.

We, therefore, think that the complaint was properly dismissed, and the objections should be overruled and the defendant have judgment ,of dismissal, with costs.

Halt, Oh. J., and Bischoff, J., concur.

Exceptions overruled and judgment for defendant, with costs.  