Nigro v. Willson, 50 Misc. 656

Nigro v. Willson

50 Misc. 656 | N.Y. App. Term. | 1906

Gildersleeve, J.

The plaintiff recovered a judgment herein for the sum of $250 for injuries received by reason of the fall upon him of a pile of lumber owned by the de*657fendants. At the time of the injuiy the plaintiff was engaged in taking lumber from a pile in defendants’ yard and loading it upon a truck. While doing this work another pile of lumber, standing a short distance from where the plaintiff was at work, fell and some of the pieces struck the plaintiff, causing the injuries complained of. The cause of the fall of the pile was entirely unknown, and no reason for it is given. The court charged the jury that the doctrine of res ipsa loquitur did not apply; but, if we assume that it did, which is the most favorable view to the plaintiff that can obtain, we think that the presumption which the application' of that doctrine would raise as to negligence on the part of the defendants, was successfully met and overcome by the testimony on the part of the defendants. The defendants’ foreman described the usual method of piling lumber and stated that the pile that fell was piled in the manner usual and customary. This witness saw the pile a few minutes prior to the fall, and it was then in proper shape. In this testimony he was corroborated by at least three witnesses. Although the plaintiff called two witnesses, who were engaged with him in loading lumber when the accident happened and who had been engaged in working in and about the yard for a long time previous to the day of the accident, no testimony as to any improper piling of the lumber was adduced from them. As the evidence stands nothing but the mere happening of the accident is shown and this is not sufficient. Papazian v. Baumgartner, 49 Misc. Rep. 244; Griffin v. Flank, 95 N. Y. Supp. 546.

Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.

Davis and Clutch, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event. •• ’