George Stelter, Respondent, v. William Cordes and Charles J. Walter, Appellants

George Stelter, Respondent, v. William Cordes and Charles J. Walter, Appellants. Second Department, July 27, 1911. Negligence — injury by splinter in floor of Dowling alley — failure to show negligence of proprietor — res ipsa loquitur. One who while howling in a public bowling alley slipped and ran a small splinter into his foot, cannot recover of the proprietor'without próof that the splinter existed for a period prior to the accident so that it could have been removed by proper care, or that it could have been discovered upon proper inspection, or that the alley was defective in construction or condition so that the splinter would naturally result from some defect. Under the circumstances the rule of res ipsa loquitur does not apply. Appeal by the defendants, William Cordes. and another, from a judgment of the Municipal Court of the city of Yew York,' borough of Brooklyn, in favor of the plaintiff, rendered on the 24th day of January, 1911. Theodore H. Lord [Floyd K. Diefendorf with him on the brief], for the appellants. Leon Raunheim, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: To sustain this judgment the plaintiff invokes necessarily the rule of res ipsa loquitur. The plaintiff when bowling in a public bowling alley slipped and ran a splinter into his foot. The obligation of the defendants was that of reasonable care and prudence lest their premises might injure the plaintiff when in a reasonable contemplated use thereof. (Larkin v. O’Neill, 119 N. Y. 221.) The rule in question arises when, the occurrence as proved points necessarily to negligence of some kind on the part of the defendant. (Robinson v. Consolidated Gas Co., 194 N. Y. 37, 41; Griffen v. Manice, 166 id. 188.). The mere fact that the occurrence was in the premises of the defendants does not raise any presumption of wrongdoing. (Curran v. Warren Chemical and Manufacturing Co., 36 N. Y. 153.) The splinter was but a small slender bit of wood. There was no proof of its existence for any period prior to the occurrence, so that proper care could have removed it, or that it was of such probable origin that proper inspection could, have discovered it. And there is no proof that the alley was defective in construction or condition so that such a splinter might be a natural result of some defect thereof. The plaintiff and his companions had used the alley on this very occasion for some time before the occurrence. I fail to see, then, that this mishap as proved points necessarily to any actionable neglect .on the part of the defendants. Moreover, the plaintiff and his companions were in the immediate lawful possession and use of the premises when the accident happened. (See Bevan Negligence in Law [3d ed.], 118.) I advise that the judgment be reversed and that a new trial be ordered, costs to abide the event. Hirschberg, Burr, Woodward and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.