Sweeney v. Edison Electric Illuminating Co.

Thomas, J.: The plaintiff, while making fast a boat at the Thirty-ninth Street ferry, borough of Brooklyn, at about five-twenty-five p. M. on Tuesday, November 14, 1911, was struck by a fragment of a glass globe that fell from defendant’s lamp that hung outside of and some seven feet aside the pathway on the ferry bridge. The top of the globe is fastened by three screws into a ring thrust into a collar, where three .bolts engage three slots in it, and then turned so that its rim rests on the bolts. A chain connects the globe to the lamp for the sole purpose of holding the globe when detached from its fitting in ■ the lamp. After the accident defendant’s inspector found the ring detached from the globe on a' beam which was beneath the lamp. The lamp was of the most approved type and was inspected. The lamp was trimmed on the Saturday before the accident and was examined every night by the inspector. The trimming process involves the lowering of the lamp by the rope, the removal of the outer and inner globes, cleaning and refurnishing with carbon, the restoration of the parts, the return of the globe to its place and rehoisting. The trimmer stated that he found the lamp and globe in November in good condition. That is the total of his evidence of care. The inspector on the night of the accident found the lamp burning with the inner globe intact, but the outer globe was gone, the ring on the behm beneath and the hook on the chain bent. In short, the globe by some force had been turned so that the slots in the ring dropped off the bolts, and nothing was broken save as stated. The ring is not held in place in the lamp by set screws, and it does not appear specifically whether collision with the ferry bridge could disturb the ring if thoroughly locked in place, nor whether, if the trimmer failed to twist the lamp so as to. make a complete interlocking, the globe could be dismantled by continued vibration. It is useless in a rational investigation of such a happening to conjecture mysterious causes. Considering the matter practically, it is a just conclusion that some hand turned the globe so that it fell or that it was jarred out of place by the external force. There is an entire absence of statement of any experience relating to similar accidents. But if a meddler did not [451] climb up and detach the ring, it fell because it was not secured against the effect of shock or vibration. I assume that it was capable of secure adjustment. Hence, if it became detached in the absence of a meddler, it was because of failure to twist it thoroughly in place, unless it was moved by some violent disturbance. But the presumption is against a person ascending and mischievously letting the globe come crashing down in front of a ferryboat already in the slip with two men on the bridge. As between the man who had the handling of the lamp and some unknown person inclined to malicious mischief, the presumption would be that the fault was with the manipulator. Of course, this presupposes ordinary conditions. If it fell during a hurricane, or some natural convulsion, or when the ferryboat crashed into the bridge, the inference of some failure on the part of the defendant could not be drawn for the contemporaneous fall of the lamp. The lamp had hung in safety from Saturday night to Tuesday night, with the use of the slip for three intervening days. Had there been evidence that there was no such imminent cause for the fall of the globe as I have suggested, then the fall with the attendant facts was sufficient evidence of culpable omission of duty on the part of defendant’s servant to require it to show that no neglect on its part existed in relation to any matter that could in reasonable expectation cause the fall. It is a used expression that in such case the burden of explanation rests on the defendant, or that it must show a cause of the accident consistent with the exercise of requisite care on its part. The law does not require impossibilities. The cause of such an event may not be ascertainable. But the burden cast on the defendant by the prima facie case is to show that it exercised the legally requisite care to do those things which if omitted would probably be the cause of the lamp falling. The nature of the case may be such that the defendant could make the proof so firm and incontrovertible that the jury could not justly disregard it or that even the court should regard it as proven. But it might be the defendant’s misfortune that he could not give evidence of such strength. For instance, in the present case the trimmer does not say that he remembered locking the globe in place, and his act was so often repeated that he could not say [452] that from specific recollection. He could only say that he did make a secure union, because that was his intended act on every night. But if a failure to do it fully be a competent cause of the part to shift and fall, and the facts justify the finding of no other competent cause, or if the testimony or the giving of it show the defendant’s witnesses unworthy of belief, then the jury may prefer the presumption of negligence to the attempted rebuttal of it. The court stated the matter in a sentence, ‘ Hence the main question for you to decide is whether the defendant had discharged the duty incumbent upon it in keeping that lamp in a reasonably safe condition.” But the defendant’s counsel made several requests to charge. As to somáfof them the court and counsel were at cross purposes, and one was “ that, even if the defendant has not shown just the cause of the accident, the jury cannot assess damages against the defendant here because it is not able to tell why this accident happened.” The cause of the fall of the" lamp was important but not indispensable ascertainment. So far as it enters into the matter the burden of showing it is on the person having the thing in its control. (Griffen v. Manice, 166 N. Y. 188.) If it were known the defendant’s care in respect to the cause could be considered. But if the cause were not discovered, yet if the defendant exercised reasonable care in regard to the things that in reasonable expectation would keep the lamp intact, it was faultless. (Hubener v. Heide, 73 App. Div. 200, 206.) The burden of explanation is thrown on the defendant (Robinson v. Consolidated Gas Co., 194 N. Y. 37), but to explain that it was not negligent, rather than the cause of the accident. (Piehl v. Albany Railway, 30 App. Div. 166, 169.) When the rule res ipsa loquitur is applicable the facts are deemed to “afford sufficient evidence that the accident arose from want of care on its part ” (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297, 300), and the defendant must rebut this inference. But it is not necessary to show the cause of the accident in order to do this. It would be helpful if the defendant could make the specific cause known and then show its care respecting it. But if it negatives the presumption of negligence by showing its care as to all probable cause, that is sufficient. The jury may well have inferred that the defend [453] ant must show the specific cause of the fall and that respecting it the defendant was not negligent. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Stapleton and Putnam, JJ., concurred; Burr, J., not voting. Judgment and order reversed and new trial granted, costs to abide the event.