30 A.D. 166 | N.Y. App. Div. | 1898
Upon the former appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, the single question presented by the record was, whether the evidence-supported the finding that the bursting of the flywheel was due to the negligence or incompetency of the defendant’s servant in charge of the engine, and we held that it did not. (19 App. Div. 471.) Upon the trial now under review, the plaintiff- was nonsuited at the close of her case. She asked to go to the jury upon all the facts in the case, upon the questions whether the defendant was negligent, or was maintaining and operating a nuisance, and her request was denied.. .
The question whether the explosion was due to the negligence or incompetency of the defendant’s servant in charge is not now urged. The learned counsel for the plaintiff insists (1) that the fact that the flywheel burst is, of itself, presumptive evidence of negligence; -(2) that its maintenance and operation, in the midst of a densely inhabited part of the city, was a nuisance; (3) that the evidence tended to show that the engine was out of order at the time of the explosion and some time prior to- it, and that -defendant knew it.
The general rule is that proof of an accident is not, of itself, proof of negligence. There are some exceptions to the rule. Thus, in Hogan v. Manhattan Ry. Co. (149 N. Y. 23) it is said that “ if a person erects " a building, bridge or other structure upon a city , street or an ordinary highway, he is under a legal obligation to take reasona
It is also presumed in favor of the passenger that a well-constructed and managed railway train will not leave the track. (Edgerton v. N. Y. & Harlem R. R. Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse R. R. Co., 18 id. 534.) (See Guldseth v. Carlin, 19 App. Div. 588; Gerlach v. Edelmeyer, 47 N. Y. Super. Ct. 292; affd., 88 N. Y. 645.) Also, if a passenger is injured by some unusual action or defect in the appliances of conveyance it is presumed that the carrier is negligent. (Poulsen v. Nassau Electric R. R. Co., 18 App. Div. 221 ; Gilmore v. Brooklyn Heights R. R. Co., 6 id. 119.)
The traveler upon the highway ought to be reasonably free from the infliction by others of injuries by external violence; and, hence, where a span wire supporting defendant’s trolley wire broke and injured plaintiff, the defendant should be put to an explanation. (Jones v. Union Ry. Co., 18 App. Div. 267; Clarke v. Nassau Electric R. R. Co., 9 id. 51; Gall v. Manhattan Ry. Co., 24 N. Y. St. Repr. 24; Cole v. New York Bottling Co., 23 App. Div. 177.)
Some.injuries are of such a nature that the first thought that occurs to the mind is that nothing but carelessness or willfulness could have produced them. The law adopts the same idea. (Resipsa loquitur. Stallman v. New York Steam Co., 17 App. Div. 397.) Sometimes the situation is such as to' suggest negligence, and the defendant alone is able, or is presumed to be able, to furnish the facts. ( Wintringham v. Hayes, 144 N. Y. 1; Collins v. Bennett, 46 id. 490.) Now, in all these cases, although the burden rests upon the plaintiff to prove negligence, he does prove it, prima facie, by proving what happened, not what caused it to happen.
This-fly wheel burst. There is no affirmative proof of negligence other than the explosion. There is evidence showing the situation
The evidence given, and that which was offered and excluded, did not tend to show that the operation of this engine and flywheel alone or in connection with all the other operations within the power house constituted a nuisance. It is quite possible that the noise of the works, the vibrations they caused, and the occasional flashing of electricity, may have been an annoyance to the next-door neighbors. But none nor all of these things killed plaintiff’s intestate, and, therefore, defendant did not thereby wrongfully cause his death. He was killed by the bursting of the flywheel. If it was unlawful to operate the engine and machinery in connection with such a flywheel, then the intestate’s death resulted from the unlawful act of defendant. But evidence of noise,, vibrations, flashing, of electricity, did not tend to show that the flywheel was in danger of bursting. Its bursting was a single, unusual and exceptional circumstance. The unexpected happened. When a powder magazine in a thickly inhabited locality explodes, the expected does happen. (Heeg v. Licht, 80 N. Y. 579.)
The plaintiff ¡Droved that the day before the explosion, a person supposed to be defendant’s engineer, though not shown to be, had a long and large stick of timber carried into the power house and laid alongside the engine whose fly wheel exploded, saying that he wished to prop the engine up. This is all. From this the plaintiff asked to have the’ jury infer that the engine needed propping up, and hence was defective, and hence the explosion. The evidence is too meagre to permit such inferences. Whether the engine needed propping up, and if so, whether because it was defective, or was to be made more convenient, or whether it was propped up or not, or how this circumstance bore upon the subsequent explosion, was left purely conjectural. The plaintiff cites Wylde v. Northern R. R. Co. of N. J. (53 N. Y. 157) to the effect that the defendant knowing the truth and omitting to speak, every inference warranted by . the evidence should be indulged against him. But the plaintiff, having been nonsuited at the close of her case, is only entitled to such inferénces of fact in her favor as her evidence fairly tends to support. Further inferences cannot be indulged against the defendant unless, as in the case cited, it has been expressly called upon to produce evidence in its possession and has refused to do so, or the.case has assumed such an attitude that defendant’s silence may be attributed to its fear to speak'.
The judgment should be affirmed.
All concurred, except Merwin, J., dissenting, and .Herrick, J., not sitting.
Judgment affirmed, with costs. ■
The plaintiff also appeals from an order denying a motion for a new trial upon the ground of newly-discovered evidence. The motion is based upon affidavits, and upon the records on the first and second appeals.
The plaintiff now wishes to try the case again upon the theory of the first trial, and she claims that by the newly-discovered evidence she can prove that the defendant was guilty of negligence in two respects: First, that Herlihy, the steam engineer in charge, was incompetent; second, that the defendant should always have an electrical engineer on duty in the power house, and there ivas none on duty when the explosion occurred.
Passing the objection that the newly-discovered evidence relates to the first trial and not to the second; that the plaintiff awaits the issue of the second trial before she is spurred to diligence in respect to making a better case upon her original theory, we will examine the motion with the view of determining "whether, with the newly-discovered testimony, it is probable that a different result would be ' reached.
By reference to the report (19 App. Div. 471) the following discussion will be' clearer. Upon the first trial, the case turned upon the difference in the order in which the witness Herlihy, the engineer-in charge at the time of the explosion, stated that he did two things — whether he pulled the dircuit breaker after he noticed that engine' No. 1 was “running away,” or before he noticed it. He said, or was understood to mean, after upon his direct examination, and' before upon his cross-examination. It was contended that if he .pulled the circuit breaker after he noticed that the engine was running away he did wrong, and that his act-was evidence of his negligence or in competency. We did not concur in that view, for reasons - stated in .our former opinion. Herlihy’s idea was that, by throwing out the circuit breaker and waiting a little while and throwing it back, he could equalize the disparity in the load the engines were carrying, and thus arrest the violent sparking at the generator of engine No. 1, which was the first trouble that attracted his attention. The new testimony offered is to the effect that throwing out the circuit breaker and .throwing it back again would not equalize the loads thq engines were carrying, and, hence, the argument that
But the testimony of a witness is now offered to the effect that after the explosión he saw a Mr. Parr turn the valve of an engine — which engine he does not know — and hence it is to. be argued that Herlihy did. not pull the -throttle. This newly-discovered testimony is too vague. Witnesses will testify that if Herlihy .had pulled the throttle, the flywheel would not have burst. This idea was-advanced upon the first trial. How expert the witnesses are upon this point is not clear. How it would be if the bursting was progressive—that is, if a crack had begun to develop in the rim before the throttle was pulled, the witnesses do not say. An expert witness who was examined at length upon the first trial now says that an electrical engineer ought always to be present in the power house, and that he had told the. superintendent so. None was present at the time .of the explosion. That is very probable, but the difficulty here, so far as the evidence points to it, was with the steam engine; its governor failed in its function. We are not told how the pres
The order should be affirmed, with costs and disbursements.
All concurred, except"Herrick, J., not sitting.
Order affirmed, with ten dollars costs.