
    Rosie Fisher, Appellant, v. The City of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Evidence — in rebuttal—presumption of negligence — in action for personal injuries.
    Plaintiff, while at her stand in the public market under the Williamsburgh bridge in the borough of Manhattan, was struck by an iron plate that fell from the bridge. In an action against the city of New York for personal injuries it was conceded that the proper statutory notices had been served; that the iron plate fell from the bridge; that immediately prior to the happening of the accident there were some employees of the bridge department at work on the bridge and that one of them dropped the plate. Held, that it was upon defendant at the close of plaintiff’s case to go forward with proof and rebut the presumption of negligence.
    Evidence considered and held not to rebut the presumption of negligence arising from the accident, and that a judgment dismissing the complaint should be reversed and a new trial ordered.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing the complaint.
    Lester W. Eisenberg, for appellant.
    Lamar Hardy, corporation counsel (Terence Farley,
    William E. C. Mayer, of counsel), for respondent.
   Guy, J.

Plaintiff claimed that on February 10, 1915, when she was at her stand in the public market under the Williamsburgh bridge, in the borough of Manhattan, she was struck by an iron plate that fell from the bridge, and the action was brought to recover damages for the- injuries sustained. It appears that the plate was twenty inches long, ten inches wide and three-eighths of an inch thick.

Defendant conceded that the proper statutory notices had been served, that the iron plate fell from the bridge, that immediately prior to the happening of the accident there were some employees of the bridge department at work on the bridge and that one of these men dropped the plate.

Under the circumstances disclosed by the evidence it was the duty of the defendant at the close of the plaintiff’s case to go forward with the proof and rebut the presumption of negligence. Huscher v. New York & Queens Electric L. & P. Co., 158 App. Div. 422; Sweeney v. Edison Electric Illuminating Co., id. 449. This is the way the defendant explained the accident:

Benjamin Jamin was working at a place known as panel No. 86 on the Williamsburgh bridge on the day in question and his work called upon him to remove “ a certain plate ” on that bridge and have it painted and replaced. He was working on the east side of a column, and there were two other workmen there — Halley on the east side and Lampe on the west side of the column.

Jamin testified: “ Well, we were taking off the plate. The plate — there was 18 holes in the plate — and we take off the plate and paint it and drive it up, and rivet it, according to the instructions. In handing up the plate Mr. Halley handed it to me, and he said ‘Are you grabbing it? ’ And I said ‘Yes,’ and not' thinking about it — there was a big trolley car coming by at the time and it gave me a brush and I let it go, and now having ahold of the plate in full, I said ‘ Let go ’ — not thinking that it would go down the hole; and that plate went down in the hole, and my friend Lampe was there three or four seconds later looking down into the drip pan at the plate, and I went and looked at the plate. ’ ’

Samuel Hamburger, an engineer of the bridge department, testified that the three employees were working on top of a longitudinal girder; that there were tracks “ on both sides of the large girder ” on which they were working, that these tracks were about ten feet apart, which gave them a clearance distance in which to work of about twenty-four inches;” that trolley oars passed about every fifteen seconds and it would not have been practicable to stop the railroad traffic on the bridge while the work was being done; that all the space of the entire elevated trolley and the entire surface car system had been constructed underneath with drip pans, which pans consist of steel plates about one-quarter of an inch thick; that an attempt had been made to cover the entire area under the structure, and “ that has been done so far as it practically can be carried out.” While this witness stated that it was possible to cover the space beneath the tracks and up to the column so that nothing could fall to the street he said that that was not practicable.

It cannot be held that the defendant satisfactorily explained that the accident happened despite the exercise of reasonable care on its part.

Eespondent contends that because Jamin, defendant’s employee, said that the trolley car “ gave me a brush,” the proximate cause of the injuries to the plaintiff was “ the brush of the trolley ear against Jamin ” causing him to drop the plate, and the secondary cause was the existence of the small space between the drip pan and the girder through which the plate fell to the street. Jamin, however, did not say that the trolley car brushed against him; neither did he say how far away the trolley car was when it gave him a brush.” The engineer said that the tracks on both sides of the girder ” on which the men were working were about ten feet apart, which gave them a clearance distance in which to work of about twenty-four inches.” It is not apparent how, with tracks ten feet apart, there would be a space of only twenty-four inches for the workmen.

Further Jamin testified that not thinking about it ” he let the plate go, and that his friend Lampe was there three or four seconds later looking down into the drip pan at the plate, and Jamin went and looked at the plate. Respondent claims that the plate went through the space between the girder and the drip pan, but the defendant’s testimony shows that it fell into the drip pan, and the workmen saw it there after Jamin let it go. If the workman’s testimony was correct it does not appear how the plate fell into the street from the drip pan.

Defendant. put in evidence diagrams showing conditions at that part of the structure from which the plate fell, but the diagrams are not annexed to the return and some of defendant’s evidence cannot be understood without reference to them.

The contradictory and unsatisfactory evidence presented by the record does not rebut the presumption of negligence from the happening of the accident, and the judgment must be reversed and a new trial ordered with thirty dollars costs to appellant to abide the event.

Bijur and Gavegan, JJ., concur.

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