William Oehme, Appellant, against Valentine CooK et al., Respondents

William Oehme, Appellant, against Valentine CooK et al., Respondents. (Decided December 2d, 1889.) The mere fact that an injury to an employe was caused by a defect in certain machinery is not sufficient to support a verdict against the employer, without some proof to show how long the defect existed, or that defendant had knowledge thereof. Appeal from a judgment of this court entered on the dismissal of a complaint on the trial.- The action was brought to recover for injuries to plaintiff, while in defendant’s employ, caused by a defective crane. The facts are stated in the opinion. Leopold Leo, for appellant. Edward M. Burghard and Lewis Sanders, for respondents. [MAJORITY — Van Hoesen, J.] Van Hoesen, J. The evidence showed that the travel-ling-bar fell from the crane, and struck the plaintiff. It would not have fallen if a piece called the preserver had been in its place on the crane. When the preserver was taken away, no one of the witnesses could testify, but it was replaced after the accident happened to the plaintiff. The learned judge dismissed the complaint because it did not appear how long the preserver had been off the machine, and said that it was indispensable that there should be some evidence that the defendants were negligent in failing to replace it in a reasonable time after its removal. In the absence of any evidence as to how long the preserver had been lacking, the judge said that the jury could not draw the conclusion that the defendants had been negligent, because, for aught that appeared, it might have been broken, and have fallen off, at the very moment of the accident. I think that the learned judge was correct in his ruling, and that the judgment should be affirmed (Bailey v. Rome & W. R. Co., 49 Hun 377). : Labbemobe, Ch. J., concurred. Judgment affirmed, with costs.