Ristau v. E. Frank Coe Co., 104 N.Y.S. 1059

Ristau v. E. Frank Coe Co.

104 N.Y.S. 1059 | N.Y. App. Div. | 1907

Gaynor, J.:

The plaintiff proved the collapse of the trestle and rested, relying on the maxim the thing speaks for itself. ISTo particular defect to cause the collapse of the trestle was apparent, and the plaintiff did not try to prove any. There was nothing but the bare fact that the trestle collapsed while in the ordinary use for which it ,, was constructed, and that it had been built only three years. The nonsuit was error. The maxim applied to the case. The learned counsel for respondent argues, following the broad language of some opinions, that the maxim, is made applicable in a given casé, if at all, only by facts and circumstances indicating negligence in the defendant proved in connection with the happening of the accident itself, and that as this case is bare of such' facts and circumstances, there is not sufficient evidence for the application .of the maxim. The fault of this is that if there were other facts showing negligence, the maxim would not be needed as evidence to carry the case to the jury at all; it is only where there is nothing but the bare happening of the accident that the plaintiff needs and the law gives him the help of the maxim to escape a nonsuit.

This case is not distinguishable from the fall of scaffolds, floors, or other places to work (Stewart v. Ferguson, 164 N. Y. 553; Len*480tino v. Port Henry Iron Ore Co., 71 App. Div. 466; Muhlens v. Obermeyer & Liebmann, 83 id. 88). There are eases in which it is apparent that the accident may have happened by sopie omission or commission by some one other than the defendant. In such a case the mere happening of the accident does not prove the cause of it, but leaves it open to conjecture. . In such cases the maxim cannot apply. It applies only where the accident apparently could not have happened unless through some negligence of the defendant (Fallon v. Mertz, 110 App. Div. 755).

The judgment should be reversed.

Woodward, Jenks, Hooker and High, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.