150 N.Y.S. 225 | N.Y. App. Div. | 1914
This action was brought to recover damages for the death of plaintiff’s intestate, who was foreman of a chipping gang,
Plaintiff’s contention is, that he fell while descending the broken ladder, and, striking upon the between deck, was thrown over the hatch coamings and down into the deep tank.
Unless this is established by a fair preponderance of evidence, the defendant’s negligence does not appear. There is no claim of fault on defendant’s part other than in connection with such ladder. Not only does the evidence fail to establish this fair preponderance, but we think there is no evidence to show how decedent fell, where he fell, where he was at the time of his fall, or that, immediately prior thereto, he had been using the broken ladder. There is certainly no direct evidence respecting either fact. While an essential fact may doubtless be proved by circumstantial evidence, a finding of the factum probandum must rest upon something more substantial than surmise or conjecture. It must rest upon evidence not only consistent with the fact to be established, but which fairly and reasonably excludes any other consideration. (Cunard S. S. Co. v. Kelley, 126 Fed. Rep. 610; Moore Facts, 596, 600, 602.) As this learned author aptly says: “It is not
In passing from hold numbered 6, it was necessary, as we have pointed out, to go up to the shelter deck and thence forward. If decedent descended the ladder in hold numbered 5 to the between deck, and then passed forward to the ladder leading to the deep tank in hold numbered 4, he would not make use of the broken ladder. If he followed this route, concededly defendant is not liable. This would be the more natural course. Inspection was required in hold numbered 5, as well as in the one numbered 4; and this was nearer to the place of departure. If he made use of the other route, and after reaching the shelter deck, went directly forward to the ladders leading into hold numbered 4, defendant is not liable, unless decedent fell while descending the second ladder, by reason of its defective condition. But he might have passed safely down this broken ladder, and stumbled over the loose dunnage wood, which was lying in great profusion about the coaming of the hatch opening into the lower hold; or he might safely have reached the lower hold or deep tank, and, while engaged in work therein, have fallen and sustained the injuries preceding unconsciousness.
In the case at bar the circumstantial evidence does not pre
It is doubtless true that, if the evidence supported both inferences, viz., that decedent fell from the ladder, or from some other cause, it would be the province of the jury in the first instance to determine the cause thereof; subject, of course, to the right of the court to reverse its finding if it was against the weight of the evidence. But, as it seems to us, there are- no circumstances which support the former contention. The causes which led to decedent’s fall rest wholly on conjecture. They are too doubtful and obscure to found any judgment thereon. (Laidlaw v. Sage, 158 N. Y. 73; Craig v. Laflin & Rand Powder Co., 55 App. Div. 49; Bond v. Smith, 113 N. Y. 378; Gillon v. Boschen, 44 App. Div. 638.)
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Stapleton and Putnam, JJ., concurred; Rich, J., voted to affirm upon the opinion of Mr. Justice Blackmar at Trial Term.
Judgment and order reversed and new trial granted, costs to abide the event.