
    Anna M. Dobbins, as Adm’rx. Resp’t, v. Walston H. Brown et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 28, 1890.)
    
    1. Negligence—Master and servant.
    " Plaintiff’s intestate was killed by a fall from a bucket while being lowered into a shaft to reach a tunnel where he was at work, and it was - alleged that such fall was caused by the apparatus connected with the bucket by which he was lowered being so defective that it fell upon and killed him with four other companions. The only survivor was unable to state how the accident occurred except that something knocked him out of the bucket. The cable was found to be broken and the dummy yoke or follower was found broken with the bucket and chain at the bottom of the shaft. Held, that the court erred in submitting the theory to the jury that the follower might have been accidently stopped and then fallen upon the bucket, as there was no evidence to support it. ■
    3. Same—Burden of proof.
    Plaintiff was bound to show affirmatively, not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants in respect to some matter which caused the injury complained of.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      F. T. Lovaii, for app’lts; J. Van Vechten Olcoit. for resp’t.
    
      
       Reversing 15 N. Y. State Rep., 1010.
    
   Ruger, Ch. J.

We are of the opinion that the evidence of negligence on the part of the defendants in the case was insufficient to support a verdict against them. The action was brought for the purpose of recovering damages for the death of plaintiffs-intestate who was a servant in the employ of the defendants, and was alleged to have been injured by a fall from a bucket being-lowered in a shaft, some four hundred feet deep, for the purpose of conveying workmen to a tunnel, the place of their labor. Such an action is supportable only upon the theory of personal negligence on the part of the employer, resulting in the injury complained of. The degree of care required of an employer in protecting his employees from injury has been stated to be the adoption of all reasonable means and precautions to provide for the safety of his servants while in the performance of their work. Corcoran v. Holbrook, 59 N. Y., 517 ; Pantzar v. Tilly Foster Iron Co., 99 id., 368. The omission to use such care has been held to be negligence rendering the employer liable for damages occasioned by it, but such neglect must be proved, either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn by the jury. It canúot be supported by mere conjecture or surmise; but must be made referable by the proof to some specific cause or defect.

It has been held thát the mere fact that an accident occurred which caused an injury, is not generally, of itself, sufficient to authorize an inference of negligence against a defendant. Curtis v. R. & S. R. R. Co., 18 N. Y., 534.

The negligence alleged in the complaint is that the machinery, appliances and apparatus used by the defendants in their work, for communication between the surface of the earth and the bottom of the shaft, was unsafe, defective and insecure, and the specification under this charge was that the dummy yoke, follower, or frame used to sready the bucket, or car, while traversing the shaft, was so defective, unsafe and insecure, and the defendants were so negligent in securing and watching the same, that said dummy yoke, or frame, fell upon the said intestate and others who were descending the shaft, and killed four out of five of its occupants, among whom was the plaintiff’s intestate.

The proof does not support this allegation. It appears that there was but one survivor of the catastrophe and he was therefore the only eye witness of the transaction, but entirely unable to state how it occurred. His testimony was, that some time after the bucket got about half way down the shaft something came from above and knocked him out of it, and this constituted the only direct evidence as to the manner in which the accident occurred. Other evidence was to the effect that after the accident the cable supporting the bucket and dummy yoke was found to be broken at a point about twenty feet above the bucket at a place where a chain connected with the cable and a shouldér had been placed for the support of the dummy yoke when in position!, and the dummy yoke, broken in three; pieces, with the bucket and a portion of the chain were found lying together at the bottom of the shaft.

There was no evidence but that apparatus and appliances, similar to the one in question, were generally in use in deep shafts for mining purposes in this country, and in some instances were required to be used by the statutes of the states in which they were employed. Mo proof was given of any defect in the plan or structure of the machinery or appliances, constituting the apparatus used in elevating and lowering the bucket in question, or that it was not well constructed of good materials in accordance with the plans generally followed in manufacturing similar apparatus. The trial court in its charge to the jury authorized them to infer that the accident might have occurred from the accidental stoppage of the dummy yoke, or follower, at some point in the course of its descent and its sudden fall thereafter from a great distance upon the bucket. We think that the court erred in submitting this theory to the jury as there was no sufficient evidence to support it. There was no evidence to show but that the dummy, or follower, immediately followed the bucket in its descent as it was designed to do, or of the existence of any cause which might have prevented it or interrupted its descent. There was no proof that the follower had not always operated as it was designed to-do, or that there was any obstruction which would on this occasion have been likely to impede its natural operation. Any inference that the accident happened in the manner suggested would, it seems to us, have been substituting conjecture for proof and violated the rule requiring proof always to be made the basis of a recovery.

There were other ways in which the accident might have occurred, as by the fall of some detached rock, dirt, or other body from the surface or shaft upon the bucket or follower, or some sudden jerk or strain upon the cable which caused it to break, or from many other unexpected and unforeseen causes which are not sufficiently negatived or contradicted by the evidence. It is quite improbable that the deaths were caused by the contact of a body falling directly upon them, but rather by the concussion of the fall from a great height to the bottom of the shaft. Whatever might have been the cause of death it was for the plaintiff to show how it occurred. The burden of proof lay upon her to-establish the liability of the defendants, and to do this she was bound to show affirmatively, not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants in respect to some matter which caused the injury complained of. The former may be legitimately inferred from the evidence, but with respect to the latter we have been unable to discover sufficient evidence in the case, and the judgments of the courts below must, therefore, be reversed and a new trial ordered, with costs to abide the event.

All concur.  