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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 517 After a most painstaking examination of a very confusing and unsatisfactory record, we have reached the conclusion that the judgment for the plaintiff cannot be sustained. The plaintiff assumed the burden of proving the defendant's negligence and his own freedom from contributory negligence, and we think he has failed in both. Even the most liberal allowance for the ignorance of our language, exhibited by the plaintiff and his witnesses, does not help the plaintiff to establish his case by the required standards of proof.
The plaintiff sustained his injuries on the afternoon of December 29th, 1909. That he fell from the second floor of the shed to the ground floor is undisputed, and this is all that the evidence establishes with any degree of certainty. The specific allegation of defendant's negligence *Page 518 is "that on the 29th day of December 1909, this plaintiff was upon the second floor of the said factory of the defendant hereinbefore specified, and in the usual and customary manner of so doing was going about his work and engaged in the duty of his employment; and while so acting was, without any fault or negligence on his part, but solely through the fault and negligence of the defendant in failing to guard a certain opening upon said floor, and in failing to properly light said floor, and in failing and neglecting to properly inspect said floor and its condition, and in failing to warn this plaintiff of the dangers and risks arising from said hole in said floor, caused the physical injuries sustained by the plaintiff to happen, in this, that said plaintiff while on said floor, without any fault on his part, and solely through the fault and negligence of the defendant, fell and was precipitated through the said hole in said floor to the ground on the floor below, and thereby sustained the physical injuries hereinafter specified." The inference which one would naturally draw from this allegation would be that there was an unguarded hole in the regular floor of the building through which the plaintiff fell to the ground floor; but this is in direct contradiction of the evidence which conclusively establishes that the building in which the plaintiff sustained his injuries was a so-called shed about twenty-five feet in height, seventy-five feet in width and three hundred and fifty feet in length, which was open from the ground to the roof, except a space of about thirty-five feet at the southerly end where there was a second floor on which there was an office accessible from below by means of stairs, and from the second floor of the main or "mill building" by a bridge which spanned an opening thirty-five feet in width. That this bridge was properly guarded by railings on both sides is established by all the evidence for both parties, and the only fact concerning which there is any controversy is whether there was a short railing running laterally from *Page 519 the northeasterly corner of the bridge for a few feet along the westerly tram tracks. The weight of the evidence seems clearly to establish the existence of this lateral guard at the time of the accident, but even if we give to the plaintiff the benefit of every possible doubt which may exist on that score, we have still to dispose of the question whether there was any evidence which fairly sustains the allegations of the complaint.
The plaintiff testified that when he commenced work in the morning of the day of the accident he was shown up stairs to the office by the "boss," and from there he went across the bridge to the "mill building" where he was put at work at a "hot bin" with some other workmen. He went home to lunch at noon, crossing this bridge and recrossing it on his return. He worked until shortly after five o'clock, when it was dark. He testified that there were no lights at the bin where he had been at work, and that without waiting for the whistle to blow he quit work and started for the office to turn in his time check. He says that there were no lights on the way to the office and that it was so dark that he had to feel his way with his hands. He went on until he fell, but he did not know whether he had gone ten feet or one hundred feet, or whether he had turned to the right or the left.
In view of this testimony it is not surprising that the learned trial justice suggested to counsel that he had no definite idea how this accident happened, and that he would like to have the plaintiff state just what route he took when he left his work to go to the office, and just what happened. In reply to this suggestion from the court, counsel for the plaintiff stated that he would supply the desired information by other witnesses. This was manifestly impossible because the plaintiff was alone and there were no eye witnesses to the accident, and the fact remains that the indefiniteness in the plaintiff's case was not cleared up by other witnesses. The only thing that furnishes even a suggestion as to the manner in which the *Page 520 accident happened is that the plaintiff was found lying on the ground floor, at or near a point below the northeasterly corner of the bridge. This is not enough to charge the defendant with negligence, and it distinctly fails to prove the allegations of the complaint.
Since this is an action at common law, it is our duty to pass upon the question whether the plaintiff has established, as matter of law, his freedom from contributory negligence. In this regard the evidence is even more strongly unfavorable to the plaintiff than the evidence relating to the defendant's alleged negligence. The plaintiff stopped work ten or fifteen minutes before quitting time. He does not explain why. He proceeded in the darkness, which was so dense that he had to use his hands, to feel his way, along a path with which he says he was not familiar, and continued until he fell from some place which neither he nor any of his witnesses have described. It needs no argument to show that, in these circumstances, the plaintiff has failed to establish his freedom from contributory negligence.
The foregoing views as to the defendant's negligence and the plaintiff's freedom from contributory negligence necessarily lead to the conclusion that the defendant's motion for a nonsuit should have been granted, and that the case should not have been submitted to the jury on any theory.
The judgment should be reversed and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, HOGAN and MILLER, JJ., concur.
Judgment reversed, etc. *Page 521