Michael Duerr, Respondent, v. Consolidated Gas Company of New York, William J. Logan and Frank J. Logan, Appellants

Michael Duerr, Respondent, v. Consolidated Gas Company of New York, William J. Logan and Frank J. Logan, Appellants. Negligence—bursting of a gas receiving tank — when both the gas company and the contractor arc liable to a person injured thereby—where a complaint is framed' and a trial is conducted on the theory of negligence the action will not, on appeal, be considered as based on trespass—doctrine of res ipsa loquitur —error in charge as to liability for the injury. In an action brought against the Consolidated Gas Company, William J. Logan ■ and Frank J. Logan, to recover damages for personal injuries sustained, in consequence of their alleged negligence, by the plaintiff, it appeared that the-defendant gas company, through its engineering department, prepared plans for the erection, on premises owned- or leased by it, of a gas holder; guide frame and steel tank;- that it contracted with the defendants Logan for the construction thereof pursuant to the plans and specifications and" “ under the direction of the chief engineer of. the owner.” The specifications provided that the tank should not “be accepted until it has been proven watertight, after being filled with water-to its full height and has so remained for thirty days.” The tank was one hundred and. seventy-eight'feet in diameter and was forty-two-deep, twelve feet thereof being below the ground. Its capacity was 1,000,000 cubic feet of water weighing over 60,000,000 pounds. Upon the completion of the tank the gas company, at the request of the defendant contractors, filled the tank with water for the purposes of the test. A few hours after the process of filling the tank had been completed, it burst, and the plaintiff, who was employed in an adjacent factory, was injured by thee rush of water. The material of which the tank was constructed was suitable for the purpose, and if the plans and specifications had been followed, the tank would have: been able to withstand three times the pressure under which it collapsed. The specifications for the tank provided that the rivet holes in the plates constituting the lower portion of the tank should be drilled. The plaintiff gave evidence tending to show that by direction of the chief engineer of the gas company these holes were punched instead of being drilled; that on account of the thickness of the plates in question it was improper to punch the rivet holes therein; that the effect thereof was to diminish the resisting power of the tank to such an extent that it was unable to withstand the weight, of the water. There was no evidence of any external violence to the tank, nor of any fact tending to account for the accident, except unskillful and improper construction. Upon an appeal from á judgment in favor of the plaintiff against all of the: defendants, Held, that, as the complaint had been framed and the action tried upon the-theory of negligence, the question whether the defendants were liable upon the theory of a trespass should not be determined; That the evidence was sufficient to justify a finding that both the gas. company and the defendant contractors were guilty of negligence; That the fact that the gas company had committed the work of constructing the: tank to reputable and independent contractors did not, under the circumstances disclosed by the evidence, relieve the"gas company from liability; That the fact that the contractors had built the tank in accordance with the. specifications of the gas company, as modified by the latter’s chief engineer, did not relieve them from liability as they had held themselves out to be competent builders of work of such character and would, therefore, be presumed to-know the effect of punching the rivet holes, instead of drilling them; That the court properly charged the jury that the doctrine of res ipsa loquitur was applicable to both the gas company and the contractors; that it was applicable to the gas company on account of its ownership, its possession of the premises and its supervision of the work, and that it was applicable to the contractors because they constructed the tank, participated in filling it with water and were in charge of the work; That the court erred in charging, “The jury may take into consideration .the fact that experience teaches that water tanks, if properly constructed, do not break without adequate cause". If the jury find that there is no evidence of external violence or other adequate cause,,the fair presumption is that the breaking of the tank occurs through some serious defect in its condition, which could scarcely have escaped the observation of the persons in control thereof; and the jury may infer negligence on their part,” as the effect of the charge was to instruct the jury that the presumption of negligence on the part of the defendants was conclusive notwithstanding the evidence offered by the defendants to show proper workmanship and inspection; that the charge was also erroneous in its statement that the defect “ could scarcely have escaped the observation of the persons in control thereof.” Appeal by the defendants, the Consolidated Gas Company of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on. the 3d day of January, 1902, upon the verdict of a jury rendered by direction of the court for $5,000, and also from -an order entered in said clerk’s office on the 31st day of December, 1901, denying, the .defendants’ motion for a new trial made upon the ■minutes. The action is- brought to recover fpr personal injuries sustained by the plaintiff in consequence of the collapse of a tank containing 1,000,000 cubic feet of Water alleged to have been caused by the negligence of the defendant's." The defendant gas company was the owner of lessee of premises extending from Twentieth to Twenty-first streets in the interior of the block between Avenue A and First avenue. Evidently through its engineering department—-although the fact is not specifically shown — it prepared plans and specifications for the erection on- these premises of a four-lift gasholder, guide frame and steel tank, and on the 15th day of March, 1898, •contracted with the defendants Logan for the construction thereof pursuant to such plans and specifications and “ under the direction -of the Chief Engineer of the owner.” The work was commenced ■on or about the 1st day of June, 1898. The specifications provided that the tank was not to “ be accepted until it has been proven water-tight after being filled with water to its full height and has so remained for thirty days.” . Upon the 3d. day of December, 1898, work upon, the tank proper was completed and the contractors requested the gas company to turn on the water for the test. The interior diameter of the tank was one hundred and seventy-eight feet and its depth was forty-two feet. Twelve feet of the tank were below the surface of the ground, but an open pit extended all around- it. The bottom of the tank was formed of steel plates three-eighths of an inch in thickness resting on concrete and brick foundation. The sides of the tank were also constructed of steel plates consisting of ten courses, each course consisting of twenty-two plates a little over four feet wide and twenty-seven or twenty-eight feet long. The thickness of the plates ranged from one and one-half inches for the lower course to seven-eighths of an inch for the upper course. The edges of the plates were to be planed and fitted, the horizontal seams lap-riveted and the vertical joints to be butted and the plates joined by outside and inside butt-straps. The bottom course of side plates was to be connected with the bottom plates by a ring of five by five-inch angle steel extending all around and composed of twenty-two bars or sections. The bottom course of side plates was to be riveted to this angle steel by a single row of one and one-quarter inch rivets spaced about three and eight-tenths inches from center to center. The rivets of the next horizontal seam above, near the top of the plates, were to be one and one-half inches in diameter, spaced four and nine-tenths inches from centers. For the number, size and position of rivets in the plates at the ends or vertical seams the specifications referred to a detailed drawing which is not contained in the record, but evidently it is not material. The company had a water tank or tower in the vicinity filled with water from the East river and this was connected with the new tank and the water was allowed to flow in gradually until the tank was filled, which took ten days, and the water was shut off at eight o’clock in the morning of the thirteenth day of December. At about five-twenty o’clock in the afternoon the tank gave way. The plaintiff, a wood carver, was working on the ground floor in the rear of a furniture factory on adjacent premises which fronted on Avenue A. The water tore away the rear and part of the side of the factory, carrying him into the street and dashing him against floating -debris and other obstructions whereby he sustained serious injuries, The gas holder had been constructed, ivas in place and substantially completed; but as the gas had not been connected, and as the pressure of the water was exerted against the sides of the tank and not against the sides of the holder, it is conceded that it had no connection with the accident and consequently it need not be described. The precise point at which the tank first gave way was not shown by any eye-witness. Evidence was given, however, tending to show that the principal fracture was at the northeast quarter of the tank; that the plates were fractured from the bottom to the top at the northeast and northwest quarters of the tank about one hundred and five or one hundred and twenty feet apart, and the section of the side between these fractures at its easterly end was moved out at the bottom and forced up the side of the pit toward Twenty-first street about thirteen feet and held in at the top by the guide frames which had pitched toward the center of the tank, and this end of the side was bent out in the middle in the shape of the letter C; that at the other end it had moved out only one foot and nine inches toward Twenty-first street, but had moved westward three feet and nine inches, so that it had pivoted around and opened a Y-shaped crack; that, this was the only point where the fractured parts that had been together had moved in opposite directions; that the upper part of this section tore off and was carried across Twenty-first street; that there was also a fracture at the southwest quarter of the tank extending nearly from the bottom to the top, and another fracture less extensive, in the southerly or southeasterly side, and other smaller fractures elsewhere. he steel plates were manufactured by a reputable concern, were of good material and suitable for this use. According to the testimony of the expert called by the plaintiff, the plans and specifications were proper, and if the tank had been constructed of the steel plates that were used, in accordance therewith, there would have been a factor of safety of more than three, i. <?., that it would have withstood a pressure more than three times as great as would be exerted upon the sides of the tank when filled with water. The rivet holes in the plates forming the bottom course of the sides were punched. The plans provided that the rivet holes in the three lower courses should be drilled. The plaintiff’s expert testified that it is not'proper to punch holes in steel plates more than an inch in thickness ; that punching rivet holes in such plates a quarter of an inch thick weakens the plates, aside from the loss of the metal removed six per cent, and punching a hole in a plate one inch in thickness likewise weakens it twenty-five per cent; that punching holes in these plates which wére one and one-half inches in thickness would weaken them about thirty-six per cent owing to the hardening of a ring of metal around the hole by compression and forcing the particles into the wall of the metal which would lessen its tensile strength, and that they would be additionally weakened by fine or incipient cracks .which are always started on the die side by punching which would .take.up part and might take up the,whole of the remaining factor of safety in the strength of the metal;'.that after the rivet holes were punched in these plates the plates were bent to the proper curve and the die side of one of the lower plates at the northwesterly quarter formed the convex or outer side which tended to further open the incipient cracks incident to the punching ; that the crack at the northeasterly quarter extended across the bottom plate a little over six feet from the nearest and intersecting two rivet holes, oné, two and three-quarter inches from the bottom and the other near the top of the plate ; that the lower of these rivet holes was designed to be one and one-quarter inches in diameter and the upper one one and one-half inches, but they were a little larger; that in the line of these fractures, which were very coarse grained and of a yellowish color, he found on the outer side of the plat.e evidence of “ a fine grain with a dark brown color showing an older break ” extending up and down from the lower rivet hole through the hardened ring caused by punching a distance of about three-fourths of an inch and penetrating about half the thickness of the plate; that these finer grained fractures were such as are made by punching; that different causes produced the coarse grained fracture and the fine grained fractures; that where lióles are punched they should be reamed to remove the ring of hardened metal, but that these holes were not reamed; that punching the holes in these plates and curving them for the sides of this tank with the die sides out would weaken them so as to reduce the factor of safety below one and they would not be strong enough to sustain the pressure with the tank full of water, and he further testified, assuming the finer grained cracks to have been made by ¡punching, that these would also so dimmish its resisting' power that it would give way under the pressure with the tank full of water. The contract price of the work was $167,500 payable in installments as the work progressed, upon the certificate of the company’s chief engineer that the work had been performed in accordance with the plans and specifications. The gas company reserved the right to make changes and alterations in the work as it progressed. The contractors had been paid $120,500, all that had become due. The defendants gave evidence tending to show that the plates were carefully inspected after being punched and that there were no fine or incipient fractures made by punching and that they were properly reamed. The contractors gave evidence from which it may be inferred that these holes were punched, instead of being drilled, by direction of the chief engineer of the gas company. The other material facts are stated in the opinion. David McClure, for the appellant Consolidated Gas Company. Frank Verner Johnson, for the appellants William J. and Frank J. Logan. Ferdinand E. M. Bullowa, for the respondent. [MAJORITY — Laughlin, J. :] Laughlin, J. : Counsel for the respondent contends that the accumulation of this large body of water in a tank above the surface of the earth and allowing it to be precipitated on adjacent premises where the plaintiff was lawfully at work in the employ of the owner or lessee thereof Constituted a trespass, for which both.the gas company and the contractors are responsible since they participated therein, and that they are liable for the injuries inflicted upon him regardless of any question of negligence. It has been held that an owner of land is liable in trespass for damages caused to persons or property upon a highway or neighboring premises, no matter how carefully the work is conducted, by-falling rock blasted in making an excavation for improving his premises, and that' if the work is done by an independent contractor the contractor alone is liable. (Sullivan v. Dunham, 161 N. Y . 290, and cases cited ; St. Peter v. Denison, 58 id. 416 ; Hay v. Cohoes Company, 2 id. 159 ; Berg v. Parsons, 156 id. 109.) On the other hand, it has been held that trespass does not lie for damages sustained by the explosion of a steam boiler, an explosion in an oil refinery, or the breaking of a fly wheel precipitating something upon a person in the highway or on adjacent premises, and that in such case negligence must be shown to warrant a recovery. (Losee v. Buchanan, 51. N. Y . 476,479 ; Piehl v. Albany Railway, 30 App. Div. 166 ; affd., 162 N. Y. 617 ; Cosulich v. Standard Oil Co., 122 id. 118.) The distinction attempted to be made between these classes of cases is that in one the owner or contractor was in the act of moving the material which inflicted the injuries, while in the other the material was set in motion involuntarily, casually and incidentally. (Sullivan v. Dunham, supra.) In the case at bar neither the contractors nor owners were at the time engaged in the act of moving the water and they were guilty of no affirmative act which caused it to move from the tank. But even if this fact would bring the case within the doctrine of the explosion cases already cited, it would not be decisive of the question as to whether the defendants are liable on the theory of trespass, at least, not as to whether the owner would be liable on'that theory. This was an artificial accumulation of water, and the weight of authority is to‘the effect that an owner who interferes with the natural fall or flow of water which results in its being precipitated upon or percolating through into the premises of another in a channel or manner different from that which would have resulted from the natural fall or flow of the water, is responsible for the damage caused thereby ; in other words, that one who accumulates water on his own premises, whether in a reservoir or otherwise, does so at his peril. (Bellows v. Sackett, 15 Barb. 96 ; Pixley v. Clark, 35 N. Y . 520 ; Jutte v. Hughes, 67 id. 267 ; Mairs v. Manhattan Real Estate Assn., 89 id. 498 ; Schwab v. Cleveland, 28 Hun, 458 ; Davis v. Niagara Falls Tower Co., 171. N. Y. 336 ; Finkelstein v. Huner, 77 App. Div. 424 ; Reed v. State, 108 N. Y. 407 ; Rylands v. Fletcher, L. R. 3 H. L. 330.) The question whether owners or contractors, or both, would be liable in trespass is one not easy of solution, and we think it should not be decided upon this appeal. As shown in the statement of facts, the complaint is framed on the theory of negligence and the record indicates that the action was tried upon that theory. The plaintiff, therefore, may nut, upon the appeal, rely upon a canse of action for trespass. If he desired to present that question he should have tried the case on that theory. Upon the trial the plaintiff did not rely upon the doctrine of res ipsa loquitur, but assumed the burden of pointing out the particular negligence with which he charged the defendants. The precise negligence charged and presented by the evidence is improper construction or workmanship in punching the bottom course of side plates which were too thick to render that a safe method of making'holes for the rivets, in failing to ream the holes after punching, in con-vexing the sides of the plates that were next the die-in punching, and in failing to discover and reject plates, in which incipient cracks had been caused by. the punching process. This .work was done by the contractors. There is evidence from which the jury might have inferred that it was done with the knowledge of the chief engineer of the gas company, who was its authorized agent daily in charge of supervising the work, and there is also express evidence that this departure from the method of. performing the work provided for in the plans was made by the direction of the chief engineer. We are of opinion that this evidence was sufficient, not only to require the submission of the case to the jury as against the gas company and contractors, but to justify a finding of negligence on-the part of all defendants. The uncontroverted evidence is to the effect that the plans and specifications wei-e adequate, if followed, not only to produce a tank of sufficient strength to sustain all the water that it would hold, but to afford a factor of safety of three. There was no storm, no evidence of any external violence, and the record is barren of any fact or circumstance tending to account for this accident upon any theory except unskillful and improper construction and workmanship with respect to punching instead of drilling these holes, unless there was some flaw or defect in the material, which is not specifically pointed out by evidence. Counsel for the gas company contends ■ that it delegated the performance; of this work to independent contractors of reputed competency and skill; that the'work was still in the hands of-the contractors, had not been accepted' by it, and that, therefore, it is not responsible. We regard this argument as untenable. It is claimed -on-'the other hand that the gas company retained such supervision over this work that it would not be relieved on the theory of non-liability for the negligence of an independent contractor. The Logans were, undoubtedly, independent contractors, and for their negligent acts, or those of their employees, the gas company was not liable. Where the work is lawful, and its performance is not imminently or necessarily dangerous, and the entire work is let by a single contract, the contractor becomes an independent contractor for whose negligence and that of his employees in the performance of the work resulting in injuries to' third parties the owner is not responsible, even though he reserves sufficient Supervision over the work by an architect, engineer, superintendent or other person to secure a compliance with the plans and specifications, provided he exercised reasonable care in selecting a skillful, competent contractor. (Uppington v. City of New York, 165 N. Y. 222 ; Koch v. Fox, 71 App. Div. 288, 291, 292 ; Hawke v. Brown, 28 id. 37 ; Kelly v. Mayor, 11 N. Y. 432 ; Berg v. Par-sons, 156 id. 109.) The gas company was improving its own premises in a manner fraught with the greatest danger to life and property in the neighborhood, unless proper care was exercised in preparing safe plans and supervising their execution. It was providing for the storage high above the surface of the adjacent premises of a liquid body over 60,000,000 pounds in weight. If its chief engineer directed the contractors to punch these plates in the manner described, instead of drilling and reaming them, the gas company is as much responsible for the consequences as if the original plans and specifications had so provided; and in that event, if the testimony of the . plaintiff’s expert is to bé believed, the plans would have been manifestly unsafe. If no such directions were given and the gas company, with knowledge of the manner in which the work was being done in departure from its plans and specifications, either approved or acquiesced therein, as the jury might have found, and participated in the filling of the tank with water, it is equally responsible. The gas company being a corporation obliged to act through officers and agents, and having in its employ an engineer to whom it saw fit to intrust the preparation of the plans and specifications and the supervision of the work, unlike an individual who has no special knowledge of the methods of construction or strength of materials,- and- is obliged-to rely upon - competent architects and builders (Burke v. Ireland, 166 N. Y. 305), cannot escape "liability on the theory that it was not acquainted with the strength of the steel plates or the effect of punching the holes instead of drilling them. There was evidence tending to show not only that the company -was aware of the fact that the holes had been punched and not reamed, but that this was done by direction of its chief engineer, who was not called as a witness. Liability of the gas company may, we think, be predicated upon the exceptions to the rule that a person is not responsible for the negligence of an independent contractor to whom it lets the performance of the work, which are well stated in Berg v. Parsons (supra), as follows : “ There are certain exceptional cases where a person employing a contractor is liable, which, briefly stated, are: Where the employer personally interferes with the work and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where the acts performed create a public nuisance ; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency., * * * In none of those exceptional cases does the question of negligence arise. There the action is based upon the wrongful act of the party, and may be maintained against the author or the p>er-son performing or continuing it.” The exceptions to the rule are stated to the same effect in Engel v. Eureka Club (137 N. Y. 100) ; in Uppington v. City of New York (165 id. 222), and in Deming v. Terminal Railway of Buffalo (169 id. 1, and cases cited). (See also Heffernan v. Benkard, 1 Robt. 432 ; Lockwood v. Mayor, 2 Hilt. 66.) Of course there was no contractual liability between .the gas company and the pffaintiff, but the conrpany owed him and all others upon adjacent premises or the highway the duty to exercise reasonable care in the use of its own premises to the end that they might not sustain injury or damage from any buildings or structures thereon. The evidence brings the case within the rule stated by the Court of Appeals in Cochran v. Sess (168 N. Y. 372) : “Any one who participates in the construction of any structure which is obviously dangerous to human life is a party to the creation of a nuisance, and engaged in an active wrong for the consequences of which he may be subjected to pecuniary responsibility.” Counsel for the contractors insists that they performed the work in accordance with plans and specifications prepared by the gas company, and changes and alterations made therein with respect to punching the rivet holes by direction of the chief engineer and that, consequently, they are not liable. They built a structure which they represented was ready for the water test and they directed that it be filled with water. It was to remain in their charge until it satisfactorily stood a test of remaining filled with water for thirty days. Upon being filled with water, owing to its improper construction, it became a public nuisance and a menace to life and property. Persons holding themselves out as competent contractors and builders of work of this character may be presumed to know the effect upon the tensile strength of the steel plates forming the sides of this ■ tank of departing from the plans and specifications, even by the direction of the chief engineer of the gas company, and punching these holes and leaving them unreamed and curving the plates so as to convex the die sides which tended to open any incipient cracks that might have been started by the punching process. Upon this evidence the jury might find that they were joint tort feasors and liable as such under the rule quoted from the case of Cochran v. Sess (supra) and the further rule therein stated by the court in declaring the liability of contractors, performing work upon a structure which fell, for injuries caused thereby, as follows: “ They are not liable, as we have seen, upon any contractual obligation or duty. The obligation that they were under to the deceased or the plaintiff was not different from that which they owed to the public at large, or to any other person who was lawfully in or about the building when it collapsed. The plaintiff was, therefore, bound to show that there was some defect in the defendants’ work, which, as reasonably prudent men, they knew, or should have known, was of such a character as to render the structure, a menace or danger to human life or render it unsafe for any one engaged in or about the building.” In that case the defendants, contracted to build a stone wall for the erection of a building. The owner furnished the foundation. A brick wall was erected upon the stone wall by other contractors. The stone wall collapsed owing to the insecurity of the foundation and injured an employee of another contractor. It was held that the defendants were not liable ■“ unless it was shown that, notwithstanding the assurances of the building department, there was such an apparent defect as to render it obvious to the contractors that they were about to erect a building upon a dangerous and insecure foundation. Ordinarily they would be justified in relying upon the. assurances of the building department, the architect and the owner himself that the bottom furnished for the stone wall was safe and suitable for the purpose. But it may be that, notwithstanding assurances of this kind, from so many responsible sources, yet if it was obvious to a reasonably prudent man that a building of the character contemplated could not be erected upon such a foundation with safety to human life, the defendants might be held responsible. It would ' undoubtedly require very strong proof of knowledge or negligence on the part of the contractors to subject them to liability under such circumstances.” (See, also, Devlin v. Smith, 89 N. Y. 470 ; Bill v. N. Y. Expanded Metal Co., 60 App. Div. 470.) The court charged the jury, and we think properly, that the doctrine of res ipsa loquitur applied to both the owner and the contractors. (Mullen v. St. John, 57 N. Y. 567 ; Volkmar v. Manhattan Ry. Co., 134 id. 418 ; Hogan v. Manhattan Ry. Co., 149 id. 23 ; Wolf v. American Tract Society, 164 id. 30 ; Griffen v. Manice, 166 id. 188 ; Wittenberg v. Seitz, 8 App. Div. 439.) It was applicable to the owners on account of their ownership, possession of the premises and supervision of the work, and it' was applicable to the contractors because they constructed the tank, participated in filling it with water, and were in charge of the work. The learned court, however, erred in charging plaintiff’s first request, to which counsel for the owner and contractors duly excepted. This request was as follows : “ The jury, may take into consideration the fact that experience teaches that water tanks, if properly constructed, do not break without adequate cause. And if the jury find that there is no evidence of external violence or other adequate cause, the fair presumption is that the breaking of' the tank occurs through some serious defect in its condition, which could scarcely have escaped the observation of the persons in control thereof, and the jury may infer negligence tin their part.” ' Even under the doctrine of the rule of res ipsa loquitur this was nót a proper instruction-. By virtue of-that rule the plaintiff makes a prima facie esse on showing the accident and attendant circumstances from which the presumption of negligence arises, and this will justify a verdict in his favor if the defendant offers no evidence. But when the evidence is all in, the burden still rests upon the plaintiff to satisfy a jury by a fair preponderance of evidence that the accident was caused by the negligence of the defendant and the jury arc to solve that question in the light of the presumption in favor of the plaintiff in the first instance and the evidence introduced on behalf of the defendant tending to overcome it. Here the court not only instructed the jury that the presumption that the accident was owing to defendant’s negligence established a prima facie case for the plaintiff, but in effect that this presumption prevailed notwithstanding the evidence ■ offered by the defendants tending. to show proper workmanship and inspection. It may be, in view of the fact that the plans were conceded to be proper and adequate, and that there was no external violence or other adequate cause, that there was a presumption that the breaking of the tank occurred “ through some serious defect in its condition,” but there certainly was no presumption that this defect “ could scarcely have' escaped the observation of the persons in control thereof,” and the court was not warranted in instructing the jury as a matter of law that they might infer negligence based on that presumption. The evidence on the part of the defendants did not account for the accident, but they were not obliged to account for it. They claimed to have met the plaintiff’s prima facie case by showing that punching these holes was common practice in such cases, that they reamed them and made careful inspection for incipient cracks. The jurors were scarcely at liberty to give due weight and consideration to this evidence presented on the part of the defendants in view of this instruction of the court by which the jury were in effect instructed as matter of law that the steel plates were defective, and that the defects could have been discovered by proper inspection. As said by O’Brien, J., in writing for the court in Kay v. Metropolitan St. Ry. Co. (163 N. Y. 447) : “The jury were bound to put the facts and circumstances proved by the defendant into the scale against the presumption upon which the plaintiff relied, and in determining the weight to be given to the former as against the latter they were bound to apply the rule that the burden of proof was upon the plaintiff. If, on the whole, the scale did. ■ not preponderate in favor of the presumption and against defendant’s proof, the plaintiff had no.t made out her case.” If the jury believed the evidence presented in behalf of the defendants they would have been justified in finding that there was no defect that could have been discovered by proper inspection, and that while the accident was then -left unaccounted, for, it may have been due to some latent defect in the material or was an unavoidable accident. This' they were not at liberty to do under the instructions given. Various exceptions to the admission of evidence are..assigned as error. Evidence that the chief engineer directed a departure from the plans with reference to drilling these holes was competent and material, but it was not proper to show it under objection and exception by' a leading question to the effect that any departure from the plans was made by direction of the chief engineér.. In the examination of his expert, counsel for the plaintiff persisted in calling for opinion evidénce, which, to some extent, invaded the province of the jury and trespassed upon their functions. This-may be avoided on the new trial, and it is unnecessary that we should take up and analyze the different questions to which objections and exceptions were interposed, and determine which were and which were not - correctly ruled upon. There are also other exceptions to the charge which present errors, but they are principally the result of conflicting instructions given at the request of counsel for the respective parties, inconsistent with the main charge, which was substantially correct.' It follows, therefore, that -the judgment and order should be reversed and a new trial granted; with costs to appellants to abide the event. Patterson and O’Brien, JJ., concurred ; Van Brunt, P.J., and McLaughlin, J., concurred in result. Judgment and order reversed, new trial ordered, costs'to appellants to abide event.