44 How. Pr. 155 | New York Court of Common Pleas | 1872
The jury was properly instructed in respect to the law, and it was for them to determine how the injury arose. They were warranted by the defendants evidence, in finding that the pump on the third .story was out of order. The defendants witness, an expert, the plumber, was of the opinion that the water came through the packing box of the pump. He testified that each pump upon the top has a piston rod, and that the packing is made of tallow and cotton, that sometimes the packing gets worn out, and that the croton water, where that is the case, will force itself out at night, as at night it would rise to the third story. He was not asked by either party if he found the packing of the piston od worn out, or if he had, in fact, examined it.
In actions of this nature, the onus is throughout for the plaintiff to establish that the injury arose from the defendant’s negligence. See this question carefully examined in an article in the American Law Review for January, 1871, and the authorities there cited, and if the case is to rest upon the statement of the porter, then it is a case of loss and damage by croton water, without any proof of what was the cause of it, except the evidence to which I shall hereafter refer.
But this is always more or less a suspicious and weak kind of evidence, as subordinates are rarely willing to admit the injuries for which the employer is responsible occured by their negligence, especially in respect to matter resting more particurlarly within their own knowledge, and upon which it is generally difficult and may be impossible to contradict them directly. But the probability or truth of their statement, no matter how positively it is sworn to, may always be weighed by the jury in connection with the general facts of the case, or tested by the impression which the whole of the evidence makes upon them, when it is all before them. Thus in the present case, if the jury were satisfied of the truth of the statement of the plumber, they would be warranted in drawing the conclusions that the water was not shut off that night, and that the porter was either mistaken or had stated what he knew to be untrue. He admited that he did not shut it off every evening, but that he did so generally, and was sure that he did so that night, which may after all have been his impression and honest belief, when in reality the fact was not so. If we could assume that the jury found the fact to be as he stated it, then the verdict which they gave against the defendants would be erroneous,
Whether the porter generally did this by the plaintiffs’ direction, or as the result of his ow observation, is immaterial, as in either event it was a precautionary measure, for there was no occasion for shutting off the water at the main pipe in the basement generally every night, unless something was apprehended by leaving it open. He says that he did it generally, but not every evening; that by doing it generally he regarded it as embraced within his duties, and yet discharged this part of them so negligently that he occasionally omitted doing it. If the accident occurred from this cause, then it would never have happened if the porter had done that evening what he. was generally in the habit of doing, and it follows from this in respect to the question of negligence, that the plaintiff was quite as much the producing cause of the accident, in not having shut off the water in his basement when the store was locked up and left for the night, as the defendants were by having a pump in the third story, the packing of the piston of which was so worn as to admit the croton water to pass up through it, "a fact of which they may have been, and probably were, entirely ignorant, or in other words, that the plaintiff’s negligence in this aspect of the case is as great in degree as that of the defendants.
In whichever of these two points of view, therefore, the case is looked at, the same result must follow. If the water was shut off from the basement that night, then there is nothing in the case except the evidence to be referred to, to show how the accident originated, or to prove that it arose from negligence on the part of defendants; whilst on the other hand, if it were not shut off, and the accident happened by the water rising up and flowing out of the box of the pump, then it was co-operating, mutual, or contributive negligence on the plaintiff’s part, to omit that what- he or his porter had been generally in the habit of doing.
Courts are usually exceedingly indisposed to take away
I come now to the evidence to which I have referred. One of the plaintiff’s witnesses testifies that he saw the water coming from a pipe on the second floor; that the pipe had burst and that the water was coming from the pipe, which was a small one, near a stop cock.
It is remarkable that none of the other of the plaintiff’s witnesses saw this. The plaintiff himself was evidently under the impression that the pump was the cause of the injury. He was not sure whether it, the pump was in the second or the third story, but the fact that it was in the third story was distinctly proved by the defendants, as also the fact that there was water on the floor of the third story, and'that it was not around the pump. These facts were not controverted, and if this witness saw water flowing from a pipe that had burst in the second story, no explanation was given of the circumstances that the third story was wet as well as the second. But even if this witness saw what he said he did, that the water was flowing from a pipe that had burst in the second story, that would not suffice to show negligence on the part of defendants, unless the bursting of the pipe was from some defect in it for which the defendants » were answerable, or through some neglect on their part which caused it to burst. It was in winter, in the month of January, and lead pipes burst from many causes—the knawing of rats, the state of the weather, &c., or other causes, for which the proprietor or occupants of buildings are not answerable. If the finding of the jury, therefore, rests upon the statement of this witness, it could not be supported without some additional evidence showing that it was through the defendants’ negligence that this pipe burst, and there is no such evidence. I am therefore of opinion that the judgment should be reversed, and a new trial ordered.