
    Samuel McFadden, Respondent, v. Herbert P. Campbell et al., Appellants.
    (New York Common Pleas — General Term,
    June, 1895.)
    In an action for personal injuries sustained by a servant, the burden rests upon the plaintiff of proving the master’s negligence, and where this proof -is equally consistent with the absence as with the existence of such negligence the complaint should be dismissed.
    An employee who,accepts employment in a storage warehouse, with knowledge of the work from which an injury might be apprehended, assumes the usual risks and perils of the service, and also those risks which are apparent to ordinary observation.
    
      ■.Plaintiff, who was employed as foreman, in defendant’s warehouse, while engaged in removing certain bales of skins, was injured by a bale of rope falling upon him. It was claimed that its fall was caused by improper tiering of the bales, through incompetency of his predecessor. It appeared that the tier of rope had stood without support for about half an hour, and that only the top bale fell. Held, that negligence on defendant’s part was not shown.
    Appeal by the defendants from a judgment entered upon the verdict of a jury, and from an order denying a new trial.
    This action was brought to recover damages which plaintiff •claims he sustained in consequence of defendants’ alleged negligence in selecting and retaining in employment an incompetent fellow-servant.
    The material facts are sufficiently stated in the opinion.
    
      Thomas 8. Moore, for appellant.
    
      Robert O. Taylor, for respondents.
   Giegerich, J.

The defendants, at the time when the accident happened to the plaintiff, viz., on or about the 21st day of December, 1891, were engaged in the storage business at various places in the city of Hew York. Among their warehouses was one covering the block bounded by Twelfth street, Thirteenth avenue, Bethune and West streets, divided into eight stores, lettered from A to H, in which were stored various kinds of merchandise, piled in tiers nearly to the ceiling of the several floors. Plaintiff had then been in their employ about a year. He at first was employed as an ordinary laborer, and subsequently and about Thanksgiving day he succeeded one Miller .as foreman of store H, the duties of which position were to superintend the receipt and delivery of goods, wares and merchandise, and the storage thereof, at said warehouse.

Before entering the defendants’ employ plaintiff had been •employed in a grocery house, which, he testified, “ is just about the same thing as a storehouse, ” for twelve years. He had been employed in storage warehouses about two years, and was “ familiar- with the various modes of storing goods; familiar with stevedores’ work generally.”

The complaint charges that previous to plaintiff’s employ- = merit as such foreman said Miller had been employed by defendants to perform similar services; that said Miller was incompetent to perform the services for which he had been employed; that his said incompetency was known to the defendants and that they had notice thereof; that previous to plaintiff’s employment as such foreman the defendants received at said warehouse a large number of bales of rope, which they negligently caused to stand therein, by or under the direction of said Miller; that while plaintiff was superintending the delivery of certain bales of goat skins, which were stored near and adjoining the place where said bales of rope had been stored, one of the bales of rope fell upon him, thereby severely injuring him.

And the complaint' further charges that “ the place where the said plaintiff was so working was rendered unsafe, and that the unsafeness thereof might, by the exercise of care and inspection, have become known to defendants, but no inspection thereof was made or caused to be made by said defendants.”

Now, the very first question to be determined upon this appeal is whether any evidence was adduced upon the trial which tends to show that the accident was due to the manner in which the bales of rope were stored; for, if there was not, it is apparent that there is no necessity' for considering the other questions raised upon the argument of this appeal.

Both plaintiff and defendant’s witnesses testified that in tiering goods each lot should stand on its own bottom and not receive support from the adjacent goods, this precaution being deemed necessary in order that one' lot of goods might be removed without depriving others of . support and causing their fall.

The manner in which the rope was stored was described by one Michael Divver, a laborer, who assisted in tiering the bales, as follows : “ The goat skins were in place before the rope was tiered, and alongside the goat skins there was an open space in which the rope was put. The rope was tiered as follows : Certain tiers of it were first piled 1 fore and aft ’ np against the wall of the building. This left a little space in between these bales and goat skins, just enough for a single side tier of rope to be run in. * * *

The truck was run in with the bale of rope and it was just emptied into this space. As we got higher up other bales were brought in, tipped and dumped in to fill up the space. There was a single side tier of bales rolled on top of that, filling up the space between the goat skins and the rope.” From the testimony of the plaintiff it appears that the goat sldns were about five feet high, three to four feet thick, and four feet wide, and that the bales of rope were in burlaps, bound with rope, and were about six feet high, four feet wide, and two and one-half feet in thickness, and stood on end; and that the bales of the latter were not straight and were in a kind of old straw bagging, “ the whole of them piled together; it was impossible to give them the right pitch unless they were leaned in against the wall or something.”

Plaintiff further testified as follows: “ Q. Then, did I understand you to say that such rope only are safely tiered up, is when it leaned against something % A. Yes, sir, leaned against the wall. Q. Was it proper tiering to tier the rope of that character so that it leaned against the next goods ? A. FTo, sir; that was a poor way. Q. Tell the jury just how that rope ought to be tiered in a place like that. A. (Witness illustrates with the model.) The rope was very soft and heavy; I should judge weighed 1,200 pounds to the bale ; it would not stand up straight of itself; you might take two of them and let them run that way (indicates); when you commence to put them up to the wall you don’t go close to the wall, but come out, and the next bale goes over. Q. You put the layers only out a little, and then give them the pitch to the wall % A. Yes, sir Q. Would it be a proper way to store rope, such a kind of rope, in such a place, to have the side tier alongside the rope jfiled in the way you have indicated % A. ITo, sir; the proper way would be to put the side tier in between two. * "x" * Q. Could rope be piled that way safely, such tiering, that way ? A. The way Divver testified? Q. Tes, sir? A. No, sir; it would not be proper to pile it that way; it wouldn’t be safe.”

At the time when the accident occurred plaintiff was engaged in superintending the delivery of 116 goat skins; these adjoined in part the bales of rope, which were to the north thereof. Such bales of rope and goat skins bordered on a gangway about six feet wide.

Plaintiff testified that with the assistance of eight men he began work at the gangway and took away bales of goat skins that were in front of the side tier, which was only the size of the end of the bales; that the matting which covered the goat skins had marks thereon which were not clear and distinct, and some difficulty was experienced in finding from a large number of goat skins the particular bales numbered in the order which plaintiff was filling.

Plaintiff further testifiedI skipped and walked around wherever I saw the needed one. There was the porter down stairs, from the store the goat skins belonged to, and he stood there, and if he saw one he would say, ‘ Stop, here is one.’ Then we did not begin again at the tier to the left to take away the skins, we might find about fifteen of them. We may have worked towards the wall; I should say we went ten feet of it. I won’t say as a matter of fact we went to the wall —■ I won’t be positive. In this sort of hallway we went in an irregular space of 10 or 15 feet. I should judge I was about 12 or 15 feet from the gangway when I was hurt. It was about twenty feet from the gangway to the wall. I .was in there about 8 or ten feet when it happened. * * * I supposed we moved easily 80 bales. I would go in and find the bale, and see it was not the right number and take it and turn it to one side. I was making search for these bales.”

John Clarke was substantially the only witness who saw the accident, and his version thereof, as testified by him, was as follows : “ I was away from him (plaintiff) when he was hurt about as far as you are from me, that is, I was working there breaking out goat skins. Q. Tell us how he was hurt, and what did you see ? A. A bale of rope. Q. What did the bale do ? A. His back was towards the bales, and the bale rolled down and struck him on the shoulders and knocked him down. Q. Where did the bale come from ? A. Came from the tier of rope. Q. What tier was it ? A. The side tier. * * * Q. Did you see it when it rolled down upon him ? A. Yes, sir. Q. How high was it before it rolled down? A. About five feet high, or six, about six feet I guess. Q. What was it held it up before it rolled down ? A. I don’t know; I worked in there the same time back and forth, and rolling out those bags. Q. In the same place ? A. In the same place; yes, sir. Q. It did not fall until this particular time ? A. Ho, sir. Q. Was it clear there or any support to it up to that time? A. Yes. Q. Ho support? A. Ho support; I had taken goat skins away from that place; we had taken goat skins away from that place; those goat skins that I took away were next to the pile of rope; I removed those goat skins; that left a clear space there; I was in there myself back and forth; this clear space was there before this bale fell; it might be 20 or 30 mi/nutes ; half cm hour or more?

It thus appears from the plaintiff’s evidence that the bales of rope stood for the length of time stated by the last witness after the goat skins were removed. For some unexplained reason the top bale, not the whole tier, fell off and struck the plaintiff.

The outside tier having thus stood the length of time mentioned, can it fairly be deduced from the evidence that the solitary bale fell in consequence of the manner in which it was tiered ? The evidence, in my opinion, does not warrant the drawing of such an inference. On the contrary, the only conclusion which, to my mind, can be drawn legitimately from the evidence is that .the bale was dislodged from its resting place in the tier by the pulling about of bales of goat skins by laborers who worked under plaintiff’s direction, and by their jostling one another in the dark, caused partly by their eagerness to finish their job, which they were encouraged to do by the words of the plaintiff: “ Come boys, make a move with these; it is getting 12 o’clock, and we’ll get thgse down before dinner.”

I am confirmed in these views by the testimony of the plaintiff-, who, after testifying to having made search for the hales of goat skins, testified as follows: “ Q. Did you watch to see that the goods were all stowed nicely at the time; did you look at it up alongside of you to see how they were ? A. I looked up in front; yes, sir; and with the lantern; my mind was on the getting out of the 116 odd numbers of the goatskins. Q. You did not care for anything else ? A. How do you mean? Q. You did not pay any attention to them? A. I was paying attention to these men; these men were turning out the 116 bales of them skins.”

But conceding, without so holding, that such conclusion cannot be drawn from the evidence, still, as plaintiff’s evidence at most shows that it is equally consistent with the absence as with the existence of negligence of the defendant, there has been a failure of proof. Hence it was error to leave the case to the jury. Baulec v. Railroad Co., 59 N. Y. 356, 366.

The case of Guliano v. Whitenack, 9 Misc. Rep. 8, cited by appellant’s counsel, is not at variance with these views, as in the present case there is not, in my opinion, room for rational doubt, either as to the circumstances proved or as to the conclusions of fact which may properly be drawn from them. Willis v. Railroad Co., 34 N. Y. 679.

The burden of proof is upon him who asserts the master’s negligence as the foundation of his claim (Benedict v. Scheider, 14 N. Y. Supp. 888; 38 N. Y. St. Repr. 201), and as plaintiff failed to sustain such burden as to a most essential feature of his claim for damages "arising out of defendant’s alleged negligence, it was error to submit the question of defendant’s negligence to the jury and to deny defendant’s motion for a dismissal of the complaint made when plaintiff rested and renewed upon the close of the entire case.

There is another reason why the plaintiff should have been nonsuited, and this is furnished by plaintiff’s own evidence, which clearly shows that he assumed an obvious danger, one clearly accepted by him as among the risks of his employment.

Plaintiff testified that the manner in which the side tier had been piled was unsafe and would not stand without support, and yet notwithstanding this he caused the goat skins which supported it to be removed.

These circumstances, considered in connection with the testimony of said Clarke, “ There is nothing out of the common in stowing in the side tiers. I worked sometimes in a storage warehouse, and am always on the lookout to see that bales don’t fall upon me when I work there; if you want to keep yourself safe you look out ahead of you; you don’t want to get yourself in a hole. To look out to see in moving bales you don’t get hurt. That is quite a common thing,” shows conclusively that plaintiff accepted and continued in a service necessarily hazardous and with knowledge of the character of the work from which injury might be apprehended, and hence it must be held that he -assumed the usual risks and perils of the service, and also those risks which were apparent to ordinary observation. Gibson v. Railway Co., 63 N. Y. 449 ; Benedict v. Scheider, supra; Davidson v. Cornell, 132 N. Y. 228.

For these reasons the judgment should be reversed and a. new trial ordered, with costs to abide the event.

Bookstaver and Bischoff, JJ., concur.

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