
    Charles Duhme, an Infant, by Henry Duhme, His Guardian ad Litem, Appellant, v. The Hamburg-American Packet Company, Respondent.
    
      Negligence —injury to one on a wharf from the parting of a steel hawser used in bringing a vessel to the wharf—res ipsa loquitur—when, on the reversal of a dismissal of a complaint after a verdict for the plaintiff, a new trial and, not a reinstatement of the verdict is proper.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff, with the sanction of the defendant steamship company, entered upon its wharf to await the arrival of an incoming steamer upon which he expected a relative: that while there he was injured by the parting of a steel hawser employed by the defendant’s servants in bringing the vessel alongside the wharf; that the hawser when it parted was wholly under the control and management of the defendant, and that, in the ordinary course of docking steamships, the parting of the hawser is an accident which does not happen if reasonable care is exercised.
    
      Held, that the doctrine of res ipsa loquitur was applicable to the case;
    That the trial court, having eliminated the doctrine of res ipsa loquitur from the consideration of the jury, and having, after the jury had rendered a verdict in favor of the plaintiff upon another theory, dismissed the complaint, the Appellate Division, upon an appeal from the judgment dismissing the complaint, would confine itself to a reversal of such judgment and the granting of a new trial and would not reinstate the verdict.
    Appeal by the plaintiff, Charles Duhme, an infant, by Henry Dulime, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of, the county of Kings on the 23d day of April, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from ah order entered in said clerk’s office on the 16th day of April, 1904,' setting aside a verdict in favor of the plaintiff and dismissing the plaintiff’s complaint, upon which said judgment was entered.
    
      Nathan D. Stern, for the appellant.
    
      Frank Verner Johnson, for the respondent.
   Willard Bartlett, J.:

I think that the doctrine of res ipsa loquitur is applicable to a casualty of the character disclosed by the proof in this case occurring under the circumstances established by the evidence. The plaintiff, with. the sanction of the defendant steamship company, entered upon its wharf to await the arrival of an incoming steamer upon which he expected a relative. While there he was injured by the parting of a steel hawser employed by the defendant’s servants ' in bringing the vessel alongside the wharf. In the ordinary course of docking steamships this is an accident which does not happen if reasonable care is exercised. The hawser was wholly under the control and management of the defendant when the shackle broke which caused it to give way. “ If an implement like this, the breaking of which is attended with danger, breaks in the proper use of it for the purpose for which it was designed, it is some evidence that it is defective in the sense that at the time it is not safe or suitable for the use-to which it is put.” (Coleman v. Mechanics' Iron Foundry Co., 168 Mass. 254, 256.) The exercise of reasonable care by a wharf owner toward those who come upon the structure by his implied invitation demands the use on his part of appliances which shall not be so defective as to be dangerous to such visitors. On the other hand, there may have been no defect in the shackle, and the accident may have been occasioned wholly by the excessive strain to which it. was subjected or some other improper manner in which it was used in mooring the steamship. Either view authorizes the inference of negligence in the absence of explanation by the party possessing and exercising exclusive dominion over the agency by which.the injury was effected. (See Griffen v. Manice, 166 N. Y. 188.)

In leaving the case to the jury, however, the learned trial judge eliminated the doctrine of res ipsa loquitur, declining to charge that proof of the accident and the surrounding facts and circumstances would suffice to authorize an inference of negligence. The following extract from the charge shows the instructions which were given on this branch of the case: “Was there any negligence upon the part of the defendant in providing the shackle in use ? * * * Was the defendant guilty of any negligence ? * * *

Was there reasonable inspection ? For the defendant company was burdened with the reasonable inspection of these implements, this hawser and this shackle. Was there any negligence on the part of the defendant in the use of the shackle ? Did it know of any fault in the shackle or should it have known of such fault if exercising reasonable prudence and care?” The jury rendered .a verdict of $750 in favor of the plaintiff, and the court then passing upon a motion to dismiss, the decision of which had been reserved by consent of counsel, set aside the verdict and directed judgment dismissing the complaint.

If the views which I have expressed are correct this dismissal was erroneous. The appellant asks us. to reinstate the verdict, arguing that it may be supported on the ground that the proof showed the defendant to have been negligent in inviting the plaintiff and others who were present on the occasion of the accident to a position of peril on the wharf. No question of this kind, however, was submitted to. the jury, and it'would not be fair to the defendant to sustain the verdict on any such basis. The proper course upon this record is simply to reverse the judgment entered upon the dismissal and grant a new trial, inasmuch as it is impossible to understand upon what theory the jury arrived at their verdict in view of the evidence and the instructions given.

Hirschberg, P. J., Woodward, Rich, and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  