Andrew Dolan, Respondent, v. New York Sanitary Utilization Company, Appellant

Andrew Dolan, Respondent, v. New York Sanitary Utilization Company, Appellant. Negligence—injury to one, dipping grease from a mt sunk in the ground, from falling into it — what proof as to the defective condition of an adjoining plank walk, on which he was stcmding, is insufficient to sustain a verdict in favor of the person injured. ■ - In an action brought to recover damages for personal injuries sustained by the. plaintiff, it appeared that the defendant maintained vats which were sunk nearly to the level of the ground; that around the vats and practically level with them was a board walk the width of three or four ordinary planks; that while the plaintiff was dipping grease from one of such vats he fell therein, owing, as claimed by him, to the fact that one of the boards turned with him. The plaintiff had worked for the defendant three years or more, and although he had gone over the plank each week he had seen nothing to indicate an unusual or dangerous condition prior to the occurrence of which he complained. Evidence was given tending to show that from one to three months before the accident the defendant’s assistant superintendent was notified that the planks , constituting the walk were in a serious condition. There was also evidence that after the accident a plank was found loose at. the point where it was assumed the plaintiff fell. For all that appeared, however, the last-mentioned plank might have become loosened on the day-of the accident. Held, that the evidence given by the plaintiff was so unconvincing and unsatisfactory as to require the reversal of a judgment entered upon a verdict in his favor. Appeal by the defendant, the,' New York Sanitary Utilization Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15.th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes. Frederick E. Fishel, for the appellant. Conrad Saxe Keyes, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The plaintiff was injured while working for the defendant at its plant on Barren Island. He was engaged at two o’clock in the afternoon dipping boiling grease from vats which were sunk to nearly the level of the ground. Around the vats and level with them, or practically" so, was a board walk, and he claims that one of the boards turned and threw him into a vat. The walk was the width of three or four ordinary planks, and was laid upon the sand,. the boards being nailed down in some manner not clearly disclosed. There was evidence given in the defendant’s behalf that the portion of the walk where the accident happened was found immediately afterwards to be in good condition, with no loose or shaky board, and its theory of the occurrence was that the plaintiff slipped in consequence of the greasy condition of the walk, but the verdict must be assumed to be based upon a finding favorable to the plaintiff in that respect, and to support his contention that one of the boards was loose so that it could and did turn under him. The case, however, is without evidence sufficiently establishing negligence on the defendant’s part. “ The ordinary rule is that the servant must show that the machinery or appliance which caused the accident was defective or out of repair, and that this condition existed for such a length of time that if the master had performed his duty of inspection it would have been discovered and remedied.” (Starer v. Stern, 100 App. Div. 393, 398.) The plaintiff had worked for the defendant at this plant three years or more, going over the walk every week, and he saw nothing to indicate an unusual or dangerous condition prior to the occurrence of which he complains. ■ For all that appears the plank may have -become ldosened on the afternoon in question. As was said in Lynch v. Bush Company, Limited (89 App. Div. 286, 288): “The contrivance was ■ reasonably safe for the plaintiff when properly nailed in place,- and there is no evidence to show that it was not so nailed in .the . morning-when the plaintiff went to work.” After both sides had rested ,and the plaintiff’s case was being heard in rebuttal, he recalled a former fellow-workman, who then testified that he had a conversation with the defendant’s assistant superintendent “ maybe a month or two or three months” before the accident and! that-he, the witness, then told him, referring to the planks constituting the walk, that “ them things was in a serious condition.” This witness when examined on the plaintiff’s main case testified that after the accident he found the -plank loose where it is assumed the plaintiff fell, but that he had not noticed “ this shaky condition ” before the accident occurred. His evidence is all there is in the record tending to charge the defendant-with notice; it .has obviously no definite relation'to the condition of the particular plank which did the mischief; and taken as a whole is unconvincing and unsatisfactory. He used the plank walk himself while in the'defendant’s employ, and was apparently unable to specify any particular in which he found it to be out - of order before the plaintiff’s mishap. The learned counsel for the respondent argues that the occurrence is - itself prima facie'proof of the defendant’s negligence.- The court charged the jury otherwise, viz., that the doctrine of res ipsa loquitur had no application to the casó, and that view of the l'aw - must be deemed correct for the purposes- of this appeal. .The judgment and order should be'reversed. Bartlett, Woodward, Rich and Miller,-JJ.,' concurred. Judgment and order reversed and new trial granted, costs to abide the event. ,