Wiedeman v. Everard

McLaughlin, J. (dissenting):

I am unable to concur in the prevailing opinion. What was the cause of the fire or where it first originated was not shown, and to conclude that “ the jury were justified in finding that.the fire originated ir. the mill; that it was carried from the mill down through'this chute into the room in which the plaintiff was at work, and there caused the fine dust floating in the air to explode,” is to do what the jury had to do in order to find the defendant liable, viz., guess at that fact, without any evidence to support it.

The assumption in the prevailing opinion, either as to the cause of the explosion or the place where it first occurred,, is speculation and nothing else. To entitle the plaintiff to recover, he was bound to show both of these facts. The burden of proof lay upon him to establish the liability of the defendant, and to do this he was bound to show affirmatively, not only his own absence of contributory negligence, but some act of omission or commission on the part of the defendant .which resulted in his injury,. (Dobbins v. Brown, 119 N. Y. 188.) There is nothing to show that the condition of the “ safety’ valve ” referred to in the prevailing opinion permitted the fire to reach the plaintiff or that it had anything to do with his injuries. The happening of. the accident, in and of itself, did not entitle the plaintiff to recover. Before property can be taken from one person and given to another, to compensate the latter for an injury sustained facts must be shown from, which a jury can fairly find the relation of cause and effect; that the party from whom the money is to be taken caused, and the one to whom it is to be given sustained, the *365injury. ■ Any other conclusion is the taking of money from one person and giving it to another by the simple fiat of the court.

I think the plaintiff utterly failed to show that his injuries resulted from any negligent act on the part of the defendant, and for that reason the judgment and order appealed from should be reversed and a new trial granted, witli costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

Judgment and order affirmed, with costs.