38 N.Y.S. 929 | N.Y. App. Div. | 1896
This is an appeal from a judgment entered in favor of the defendant. upon the dismissal of the complaint at the trial in the Superior Coiirt, and from an order denying a motion for a new trial. The action was brought to recover damages for personal injuries sustained by the infant plaintiff, which injuries were caused by an explosion of illuminating gas which took ¡dace at the premises No. 112 Eldridge street, in the city of NeW York, on the 18th day of May, 1892, the allegation of the complaint being that the explosion occurred in consequence of the negligence of the defendant’s servants, who were working about and in the street in front of the premises mentioned. The cause was tried twice. At the first trial a verdict in favor of the plaintiff was found by the jury. On appeal, the judgment entered upon that verdict was reversed ■ by
■ The question arising on this appeal is,, was there proof sufficient to go to the jury as making out a prima facie case of negligence on the part of the defendant’s workmen, and it involves a consideration of all the evidence presented. Of positive and direct evidence of any act or acts constituting negligence the record is barren; but in a case of this character it is not absolutely necessary to a recovery that a witness should be able to testify, from personal knowledge or observation,-to the particular fact relied upon as constituting negligence, but where from the condition of the proof an inference may be justly and fairly drawn of negligence on the part of the defendant, the circumstances should be submitted to the jury, and it is for them to decide whether the negligence existed or not.
On the first trial of this cause the evidence was not sufficient. All that appeared was that the infant was standing with his brother on the cellar door in front of the premises referred to; that the defendant’s servants had been working in the street repairing or rearranging the gas mains in Eldridge street opposite the premises in which the explosion took place, and that they had been engaged in that work in the street for several days; that leakage of gas had taken place in the cellar of the house No. 172 Eldridge street, and that it had caused a great deal of annoyance to the occupants of that house, and that it was also observable by residents in the neighborhood ; that the attention of one of the workmen of the defendant was called to the escape of the gas, and that he entered the cellar of the house referred to for the purpose of ascertaining where the leakage was to be located, and that while there, and, from all that
If the escape of gas, therefore, was at the point testified to by. Drucker, and it is his testimony alone that indicates the point of leakage, it is impossible to see how the defendant’s servants were in any way connected with or responsible for the condition of the pipes at that point, and in the absence of testimony showing some connection of the defendant’s workmen with the service pipes at or near that point, or that the pipes at the house would necessarily be affected by working at the mains, the court below was right in dismissing the complaint. ■
• The judgment and order denying the motion for a new trial must' be affirmed, with costs.
Van Brunt, P. J., Bumsey and Williams, JJ., concurred.
Judgment and order affirmed, with costs.