The accident occurred on February 16, 1911, when both of plaintiff's legs were broken by falling bags of cement. The complaint alleges acts of negligence at common law and under the Employers' Liability Act (Labor Law, amended by L. 1910, ch. 352), but the notice required to be served under section 201 of the Labor Law was not offered in evidence on the trial.
The questions are whether defendant was negligent in furnishing plaintiff with a safe place to work and whether plaintiff sustained injuries by reason of such negligence.
Defendant is a corporation. It conducts a storehouse in the city of Albany in which plaintiff was working at the time of the accident. The storehouse is a one-story building, consisting of one room 50× 100 feet, with cellar beneath. At the time of the accident it was filled with bags of cement and barrels of lime, weighing one to one and one-half million pounds. Plaintiff's evidence establishes that the floor sagged from two to six inches, depending upon the weight placed upon it; that it vibrated when truckloads of cement and lime were moved over it; that it sprang up and down when heavy loads were put on or taken off. Plaintiff was working in the northeast corner of the room with a helper loading bags of cement on a truck from a pile of such bags ten bags high, *Page 601 weighing about one hundred pounds each, and then placing them on wagons outside. Two wagons had been loaded when the accident happened. Plaintiff and his helper came back for another load, but before they touched a bag the bags fell, causing the injury. At the time of the accident one Kirchner was removing barrels of lime on a handtruck some distance from the place of the accident.
Although plaintiff gave evidence tending to show that on previous occasions when the workmen were trucking cement over the floor bags had fallen, there is a total failure of proof that on these occasions, or on the occasion when plaintiff was hurt, the bags fell by reason of the condition of the floor. It does not appear that either the sagging or the vibration of the floor caused the bags to fall. At the time of the accident there was no movement or shaking of the floor, except as the jury might infer that Kirchner's operations with his truck seventy feet or so away caused such vibration, but there is nothing except the coincidence in time to suggest this.
The evidence does not indicate how the bags that fell upon plaintiff were piled, nor how they fell, nor how many fell. The fall may have been due to improper piling or the pile may have been rendered insecure by plaintiff and his helper when they got out the other bags of cement.
Plaintiff cannot recover if the accident may, with equal reason, be accounted for on another theory than that the bags fell because the floor sagged when heavy loads were piled on it and vibrated when heavy bodies went over it. It is not enough to show that the condition of the floor might have caused the bags to fall. The burden is upon the plaintiff to establish that the condition of the floor did cause the bags to fall. This fact, like any other, may be shown by circumstantial evidence. The plaintiff makes positive proof of the shaky floor and of the accident. But is the inference that the condition of *Page 602 the floor caused the accident the only one that can fairly and reasonably be drawn from these facts? "The plaintiff must fail if the evidence does not show that the injury was the result of some cause for which the defendant is responsible." (Ruppert v.Brooklyn Heights R.R. Co., 154 N.Y. 90, 95.)
In the case of Wazenski v. N.Y.C. H.R.R.R. Co. (180 N.Y. 466,469), cited by respondent, O'BRIEN, J., said: "There is really no other way, [than the way suggested by the plaintiff] that I can perceive, to account for the accident." In the case ofReilly v. Troy Brick Co. (184 N.Y. 399), also relied upon to sustain the verdict, a question arose as to defendant's negligence, but there was no dispute as to the cause of the accident.
Plaintiff must sustain a theory of cause and effect irreconcilable with any other theory than that his injuries were directly and proximately caused by reason of defendant's negligence. (Lopez v. Campbell, 163 N.Y. 340, 347.)
Without more definite evidence of the condition of the pile of bags of cement immediately before it fell and the manner of the fall, which shall negative the present possible inference that plaintiff himself left the pile insecure and top-heavy, so that it fell solely of its own weight, plaintiff fails to establish that defendant's negligence with regard to the condition of the floor was a contributing cause of his injuries.
The judgment should be reversed and a new trial ordered, costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and SEABURY, JJ., concur.
Judgment reversed, etc. *Page 603