Oehme v. Cook

Van Hoesen, J. The evidence showed that the traveling bar fell from the -crane and struck the plaintiff, but that it would not have fallen if a piece [765] called the “preserver” had been in its place on'the crane. When the preserver was taken away, no one of the witnesses could testify, but it was replaced after the accident happened to the plaintiff. The learned judge dismissed the complaint because it did not appear how long the preserver had been off the machine, and said that it was indispensable that there should be some evidence that the defendants were negligent in failing to replace it in a reasonable time after its removal. In the absence of any evidence as to how long the preserver had been lacking, the judge said that the jury could not draw the conclusion that the defendants liad been negligent, because, for aught that appeared, it might have been broken and have fallen off at the very moment of the accident. I think that the learned judge was correct in his ruling, and that the judgment should be affirmed. Bailey v. Railroad Co., 3 N. Y. Supp. 585. Judgment affirmed, with costs.