Edward Ristau, Appellant, v. E. Frank Coe Company, Respondent

Edward Ristau, Appellant, v. E. Frank Coe Company, Respondent. Second Department, June 7, 1907. Negligence — collapse of trestle'—res ipsa loquitur. When a trestle, eighteen feet high, used to convey the product of the defendant’s . factory to a place of storage, collapses while in ordinary use, the-maxim of res ipsa loquitur applies, and the plaintiff need not show the particular defect which caused the accident. ' It seems, that where the accident may have happened by the fault of persons other than the defendant-, the maxim'does not apply. Appeal by the plaintiif, Edward Ristau, 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 30th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. The action was by servant against master for damages for negligence. The plaintiif was engaged in pushing by hand loaded trucks or cars along a track or tram on a trestle about .18 feet high. The product of the defendant’s factory was thus taken from .the factory to a storage place. The trestle collapsed and fell to the ground, and the plaintiff was thereby greatly injured. A nonsuit was granted on the plaintiff’s case. Wallace R. Foster and Martin S. Lynch, for the appellant. William A. Jones, Jr. [Henry M. Earle and Alden S. Crane with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff proved the collapse of the trestle and rested, relying on the maxim the thing speaks for itself. ISTo particular defect to cause the collapse of the trestle was apparent, and the plaintiff did not try to prove any. There was nothing but the bare fact that the trestle collapsed while in the ordinary use for which it ,, was constructed, and that it had been built only three years. The nonsuit was error. The maxim applied to the case. The learned counsel for respondent argues, following the broad language of some opinions, that the maxim, is made applicable in a given casé, if at all, only by facts and circumstances indicating negligence in the defendant proved in connection with the happening of the accident itself, and that as this case is bare of such' facts and circumstances, there is not sufficient evidence for the application .of the maxim. The fault of this is that if there were other facts showing negligence, the maxim would not be needed as evidence to carry the case to the jury at all; it is only where there is nothing but the bare happening of the accident that the plaintiff needs and the law gives him the help of the maxim to escape a nonsuit. This case is not distinguishable from the fall of scaffolds, floors, or other places to work (Stewart v. Ferguson, 164 N. Y. 553; Len tino v. Port Henry Iron Ore Co., 71 App. Div. 466; Muhlens v. Obermeyer & Liebmann, 83 id. 88). There are eases in which it is apparent that the accident may have happened by sopie omission or commission by some one other than the defendant. In such a case the mere happening of the accident does not prove the cause of it, but leaves it open to conjecture. . In such cases the maxim cannot apply. It applies only where the accident apparently could not have happened unless through some negligence of the defendant (Fallon v. Mertz, 110 App. Div. 755). The judgment should be reversed. Woodward, Jenks, Hooker and High, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.