
    DANIEL EADES, Appellant, v. HEMAN CLARK,. et al., Respondents.
    
      Burden of proof as to freedom from contributory negligence—Master and■ servant.
    
    In an action for damages for injuries caused by the falling of a rock from the roof of a tunnel in which plaintiff was at the time employed by defendants, the contractors engaged in the construction thereof, the complaint alleging that such injuries were due to defendants’ negligence,, the only evidence as to plaintiff’s freedom from negligence was his own testimony to the effect that he could not say whether he had or had not, prior to the accident, noticed the peculiar and dangerous condition oí that portion oí the rooi which fell upon him.
    
      Held, that the complaint was properly dismissed, the burden of showing his own freedom from' negligence resting upon plaintiff.
    Before Sedgwick, Ch. J., Freedmax and Truax, JJ.
    
      Decided November 21, 1887.
    Appeal from, judgment dismissing the complaint.
    The action was brought to recover damages alleged to have been sustained by the plaintiff, without negligence on his part and through the negligence of the defendant. It appeared that defendants. were contractors engaged as such in the construction of the new aqueduct for the supply of water to New York city; that plaintiff was employed by them upon said work, and that the duties of his employment called him in and out of a certain tunnel then in progress in the course of said work; that while so engaged in said tunnel, plaintiff was injured by the falling of a large piece of rock from the roof of the tunnel. It also appeared that the peculiar and dangerous condition of the roof had been noticed by others .prior to the happening of the accident. Plaintiff contended that defendants were negligent in not timbering said roof, and otherwise.
    Further facts appear in the opinion.
    
      W. T. Daniel, attorney, and Robert Sewell, of counsel, for appellant:
    I. It is error for the court to grant a nonsuit if by any allowable deduction from the facts a cause of action might be sustained, by the plaintiff. Greany v. Long Island R. R. Co., 101 N. Y. 419 ; Vanderwald v. Oslen, 1 N. Y. St. Rep. 506; Hart v. Hudson R. R. Co, 80 N. Y. 622; Delaney v. Hilton, 50 Super. Ct. 341; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Metro. Ry. Co. v. Jackson, 3 App. Cas. 193; Feltham. v. England, L. R. 2, Q. B. 46; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Manning v. Hogan, 78 Ib. 615; Young v. N. Y. C. R. R. Co. Daily Reg. July 15, 1885; Barry v. N. Y. C. R. R. Co., 92 N. Y. 289; Lehigh V. R. R. Co. v. Greiner, 9 East. Rep. 787; Hyatt v. Johnson, 91 Penn. St. 200; Ryder v. Wombwell, L. R. 4 Exch. 39; Improvement Co. v. Munson, 14 Wall. 442.
    II. It is in evidence : 1. That after a blast is fired the shaft boss should go in first to make proper examination,, and that he did not go in first after the blast which had. preceded the accident. 2. That the ground was bad, full of seams, rotten, dangerous and unsafe. 3. That the foreman and walking boss had been repeatedly warned of it by those working in the heading who were miners. 4. That the very stone that fell upon the plaintiff had been tested and pointed out as unsafe and' liable to fall any minute, that it was hanging down and loose so “ that a crow-bar could be run between.’ ’ 5. That it could have been made safe by removing it from the roof of the tunnel, but it was not done, and one man who attempted to pull it down was prevented by the boss. 6. That it could have been made safe by timbering or by supports, and that it was customary to timber such places, and practicable in this case. But the foreman refused to timber it, and it was not timbered. 7. That prizes were offered to the foremen of different shafts for those which would make the greatest heading in a given time.
    III. Plaintiff was employed not as a miner but to carry oil and candles to the" miners and laborers. He “hired to do anything in the way of ordinary labor.” He was merely an ordinary laborer and employed only as such, and charged with no technical knoAvledge such as miners might be presumed to possess. He was not a judge of the stability of different kinds of earth. It was not his duty to examine the roof of the tunnel. He was merely to go from the outer light into the darkness of an underground tunnel, which was to be made safe and fit for him to traverse by the defendant, carrying oil, candles, tools and water to the men. Further, if the plaintiff were a miner, that does not render him guilty of contributory negligence. He had a right to assume that the ground above him and around him,, deep down in the dark tunnel, was properly supported by those whose duty it was to furnish him with a safe place to work in. Gottleib v. N. Y., L. E. & W. R. R. Co., 29 Hun, 637, 740 ; affirmed 100 N. Y. 462; Hayes v. Bush & D. M. Co., 41 Hun, 407. He took the risk in entering the employ of the defendant of “ all hazards incident to the nature of the employment,” but he did not take the risk of injuries resulting from a “ cause which the exercise of proper care and prudence on the part of the master would have foreseen and guarded against.” Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368 ; Flike v. B. & A. R. R Co., 53 Ib. 549; Booth v. B. &. A. R.. R. Co., 73 Ib. 40; Ryan v. Fowler, 24 Ib. 410; Hutchinson v. Ry. Co., 5 Wells, H. & Y. 352; Noyes v. Smith,, 28 Vt. 59; Sheenan v. N. Y. C. & H. R. R Co., 91 N. Y. 339.
    IV: If there is any evidence or any possible inference' from the testimony of any of the witnesses which imputes any negligence to the plaintiff it is clear that the question of contributory negligence was clearly one for’ the jury and not for the court. Gibson v. Erie R. R. Co., 63 N. Y. 451; Laning v. N. Y. C. R. R. Co., 49 Ib. 521; Hawley v. N. C. R. R. Co., 82 Ib. 370; White v. Sharp, 27 Hun, 44; Sprong v. B. & A. R. R. Co., 58 N. Y. 56 ; Jones v. N. Y. C. & H. R. R. Co., 28 Hun, 364; aff’d 92 N. Y. 628; Vanderwald v. Olsen, 1 N. Y. St. Rep. 506. “The culpability of the defendant must be affirmatively proved before the case can go to the jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances.” Johnson v. H. R. R. Co., 20 N. Y. 65; Jones v. N. Y. C. & H. R. R. R. Co., 28 Sun, 364; affirmed 92 N. Y. 628; Williams v. Del., Lack. R. R. Co., 39 Hun, 430.
    V. While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably apprehend injury, generally imposes upon him the duty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this state to be a question of .fact to be determined by the jury. Bassett v. Fish, 75 N. Y. 304; Palmer v. Dearing, 93 Ib. 10; Weed v. Village of Ballston Spa., 76 Ib. 329; Niven v. City of Rochester, 76 lb. 619.
    
      E. T. Lovatt and Sooner A. Nelson, for respondents.
   By the Court.—Truax, J.

The plaintiff in an action of this kind must prove more than the negligence of the defendant; he must prove that he, himself, was free from negligence, before he can recover. This fact the plaintiff failed to prove ; he failed to prove that he was ignorant of the condition of the rock, the falling of which injured him.

The burden of proving his own freedom from negligence is as much a part of the plaintiff’s case as is the burden of proving the defendant’s negligence, and if he fail to prove either the one or the other, he has not proved facts sufficient to constitute a cause of action. Reynolds v. N. Y. Cen. & H. R. R. Co., 58 N. Y. 248; Hale v. Smith, 78 Ib. 480; Hart v. The Hudson Riv. Bridge Co., 84 Ib. 56 ; Becht v. Corbin, 92 Ib. 658.

The only evidence on this point is the evidence of the plaintiff himself, to the effect that he could not say whether he had or had not noticed the peculiar and dangerous condition of that portion of the roof which fell on him. This evidence does not come up to the requirements of the law; it does not prove that the plaintiff was ignorant; and in this respect the case now before us differs from Pantzar v. Tilly Foster Iron Mining Co., 99 . N. Y. 368, where the evidence tended'to show, and the jury were warranted in finding, that the plaintiff was ignorant of the dangerous condition of the rock that fell on him.

If the plaintiff had testified that he was ignorant of the dangerous condition of affairs, it would then be left .for the defendant to show, first, that he was not ignor.ant; and, secondly, if ignorant, that he was negligently ignorant, in which event the plaintiff’s negligence or freedom from negligence would become a question for the jury.

The burden of proving the plaintiff’s negligence •should not in the first instance be put upon the defendant.

If the plaintiff knew of the dangerous condition of "the rock, he had no right to rely upon the presumption ■ of the performance of the duties that the defendant owed to him of “adopting proper and suitable measures of precaution to guard him against the consequence of any danger arising from the unsafe condition of the rock.” If he did not know, then he had the right to rely on the obligation put upon the defendant by the law; but he must either testify that he was ignorant, or the evidence in his own behalf must be such as would warrant the jury in finding that he was ignorant. But there is nothing in the plaintiff’s testimony in this case that would warrant the jury in finding that he was ignorant ■ of the condition of affairs.

The above is, I think, the rule to be deduced from such cases as Laning v. The N. Y. Cen. R. R. Co., 49 N. Y. 521; Gibson v. The Erie Railway Co., 63 Ib. 449; Leonard v. Collins, 70 Ib. 90 ; De Forest v. Jewett, 88 Ib. 264.

There are certain cases which it is claimed are authorities for the proposition that the burden of proving the plaintiff’s knowledge is upon the defendant. Of this «class of cases are, Niven v. The City of Rochester, 76 N. Y. 619; Plank v. The N. Y. C. & H. R. R. Co., 60 Ib.. 607; Williams v. The Del., L. & W. R. R. Co., 39 Hun, 430, and Pantzar v. The Tilly Foster Iron Mining Co., supra. These cases are not authorities for such a proposition.

The Plank case is not correctly reported. See De Forest v. Jewett, 88 N. Y. 269, from which last case it-appears that the person injured as a matter of fact had no knowledge of the defect in the thing through which he was injured.

In the Niven case, while the person injured had at one time knowledge that the sidewalk was in a had condition, yet she was ignorant of the particular defect (a hole in the sidewalk) that caused her injury. Moreover, she was walking carefully.

In Palmer v. Dearing, 93 N. Y. 7, the plaintiff knew of the defect that caused her injury; but she had been told, a day or two before the accident, by the defendant’s agent, that the defect would be repaired, and at. the time of the accident she supposed that it had been repaired; in other words, she was then ignorant of the defect.

Whether the plaintiff was or was not ignorant of the' existence of the thing through which he was injured was one of the questions in dispute in Williams v. The Del., Lack. & West. R. R. Co., supra, and therefore the question of plaintiff’s contributory negligence was rightly left to the jury.

We have also seen that, in the case of Pantzar v. The Tilly Foster Iron Mining Co., supra, the evidence showed that the plaintiff was ignorant of the defect.

This view of the law renders it unnecessary for us to' consider the questions raised by the rejection of certain, evidence offered by the plaintiff, as that evidence tended, only to prove the negligence of the defendant.

The judgment appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  