
    HOLLANDER v. HUDSON et al.
    (Supreme Court, Appellate Division, First Department.
    July 11, 1912.)
    1. Negligence (§ 121*)—Condition of Building—Ríght of Recovery—Res Ipsa Loquitur.
    Where a decorator went to defendants’ house at their request to work, and while there was injured by the unexpected falling of a column which had stood for several years without appearing insecure, he could not recover without proof of defendants’ negligence; the doctrine of res ipsa loquitur, under which negligence may be presumed from circumstances attending an accident, not applying in such case.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 217-220, 224r-228, 271; Dec. Dig. § 121.*]
    •For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      2. Negligence (§ 121*)—Pkesumftion—Res Ipsa Loquitok.
    The circumstances attendant upon ap accident which will justify an inference of negligent cause under the doctrine of res ipsa loquitur must be proved and not left to mere speculation, and, when proved, the inference of negligence must be the only one which can be reasonably drawn.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 217-220, 224r-228, 271; Dec. Dig. § 121.*]
    3. Negligence (§ 32*)—Safety of Building—Duty Owed.
    Householders who invited a decorator to work upon their premises were not insurers, but owed him merely the duty to exercise reasonable care for his safety while there.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*]
    •For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    Appeal from Trial Term, New York County.
    Action by Edward Hollander against Charles I. Hudson and another. From judgment for plaintiff and order denying new trial, defendants appeal.
    Reversed, and new trial ordered.
    See, also, 140 App. Div. 899, 125 N. Y. Supp. 138.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.
    John Godfrey Saxe, of New York City, for appellants.
    Nathan D. Stem, of New York City, for respondent.
   McLAUGHLIN, J.

The plaintiff is a decorator, and in response to a request of the defendants, or one of them, called at their residence to do certain work, and was shown into a room called the conservatory or palm room. This room was 18 feet 9 inches long, 7 feet 2 inches wide, with two feet of the width taken up by a plant shelf running the whole length of the room. Above the shelf was a window which also extended nearly across the width of the room, and at or near either side of which stood two marble columns. Each column was 9% inches at the base, 6 feet 10 inches in height, and the column was fastened to the base by an iron rivet. While the plaintiff and one of the defendants were in this room, standing near the window, one of the columns fell, striking plaintiff and injuring him, for which he brought this action to recover the damages alleged to have been sustained. He had a verdict for a substantial amount, on which judgment was entered, from which, and an order denying a motion for a new trial, defendants appeal.

I am of the opinion that the judgment must be reversed as against the evidence. The column had stood in the position where it was when it fell for several years; It had never before fallen, and there was no proof that it was dangerous, insecure, or defective, or what caused it to fall. The court charged the jury that “there appears to be, from the testimony of the plaintiff, no evidence whatever as to what caused that column to fall.” All there is therefore to sustain the verdict is the fall itself.

It is sought to sustain the judgment on the theory—and this is the theory on which the case was submitted to the jury—that the doctrine of res ipsa loquitor applies. It does not apply. The action is based upon, defendants’ negligence, and the mere fall of the column, unaccompanied by .proof of any other fact or circumstance connected with it, is insufficient to sustain a finding of negligence. All that the phrase “res ipsa loquitor” (the thing speaks for itself) means is that proof of the attendant circumstances upon an accident is itself of such a character as to justify a jury, if unexplained, in inferring negligence as the cause. Griffin v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A, 922, 82 Am. St. Rep. 630.

The' attendant circumstances which justify the inference must be proved, and! not left to mere speculation. And, when proved, it must appear that the inference sought to be drawn is .the only one which can reasonably and fairly.be drawn therefrom. Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90, 47 N. E. 971. An unusual occurence resulting in injury does not any more than the mere happening of an accident per se raise a presumption of negligence. Eaton v. N. Y. C. R. R. Co., 195 N. Y. 267, 88 N. E. 378. This is the general rule, to which, it is true, there aré exceptions, for instance, where the relation of carrier and passenger exists or injuries to travelers in the public streets.

The defendants were not insurers of the plaintiff’s safety. ' The duty they were under to him was' to exercise reasonable.care for his safety while upon their premises. The record is entirely barren of any evidence tending to- show neglect upon their part.' If these views be correct, then it follows that the court erred in not dismissing the complaint at the close of plaintiff’s case, or directing' a verdict in favor of the defendants at the close of the whole case. Proper exceptions were taken in each instance by the defendants, and also to the charge of the court in permitting the jury to find the defendants negligent from the fall of the column alone.

The judgment and order appealed from are therefore reversed, and' a new trial ordered, with costs to appellants to abide event. All concur.  