63 N.Y.S. 508 | N.Y. Sup. Ct. | 1900
Plaintiff moves to set aside a dismissal. He showed that, while in.the orchestra of defendant’s theatre, he was injured through the fall of an iron hook from above the stage. The defendant, through a witness called by the plaintiff, showed that the hook fell while in use by the stage carpenter; there was no evidence of the character of any defect which existed prior" to the accident, or that the tool was unsuited to the work. It does not appear that the use of such a fire hook in good condition was careless; and so, as a defect probably existed, negligence depends upon' whether the defect was discoverable upon inspection or not. The case is bare of evidence upon this point. The dismissal was, therefore, right. Gavin v. Rogers & Co., 17 Rettie, 206; Beven Neg. 141; Thomas Neg, 574. The point that, if a presumption of negligence arises from the circumstances of a case as presented by a plaintiff, the defendant must show care, is not well taken. To meet the presumption it is sufficient to show circumstances inconsistent with its existence, though they be insufficient to prove care. As illustrative, a plaintiff’s prima facie case made by a presumption of death, due to an absence of seven years, may be met by evidence of presence within-the seven years, though there be no showing of life.' The presumption of negligence, if it exists, arises, among other things, from an absence of explanation by defendant; but so soon as an explanation is made and shows a situation wherein the accident may have happened from a variety of causes, any of which is
Motion denied.