' The defendant, T. Reilly, was a contractor at work on a sewer in West 72d street near Columbus "avenue, New York
I think that the judgment must be reversed for an error in instruction to the jury. The case was tried and was submitted only on the theory of negligence. At the close of the main charge either counsel made several requests for further instructions. And in response the court charged that the mere fact that the intestate was killed by the explosion did not entitle the plaintiff to a verdict unless the jury was satisfied by proof of the negligence of the defendants, that there was no presumption of negligence or fault in the defendants from the mere happening of the accident, unless certain facts were sufficient to show negligence, and it refused to charge that there was no evidence of defendants’ negligence, with comment that it would leave that as a question of fact for the jury, and with like comment it refused to charge in effect upon the facts of the case that the presumption of negligence arose from the mere happening of an accident of this character.
Thereupon the plaintiff’s counsel asked for this instruction: “Thedefendant in this case having shown that there was an explosion in a shanty under his control was called upon to
Was such an instruction justified by the case at its close ? The circumstances relied upon by the plaintiff were of course rebuttable (S. & R. Neg. [Street’s 6th ed.] § 58a), and, therefore, I shall consider all of the evidence. The explosion is admitted. But the maxim “res ipsa loquitur ” does not apply to that mere physical fact. In Griffen v. Manice (166 N. Y. 193), Cullen, J., quotes with approval the language of Shear-man and Eedfield on Negligence (§ 59) as follows: “It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that
There are two considerations to be borne in mind in discussion of the evidence. First, even if the maxim applies in a given case, the burden of proof is not shifted. (Cunningham v. Dady, supra.) Second, although Griffen v. Manice in effect denies the limitation of the maxim to contract relations (See Brady v. City of New York, 149 App. Div. 816), yet when there is not such a relation there must be “actually shown such facts and circumstances, in the nature of the defendant’s undertaking and of the accident itself, from which the jury are able, if not compelled, to draw the inference of negligence It was not intended that it should exempt the plaintiff* from the burden of proving, affirmatively, negligence, or circum stances making negligence a legitimate, if not an irresistible, inference.” (Duhme v. Hamburg-American Packet Co., 184 N. Y. 409, per Gray, J.)
The cause of the explosion, so far as direct proof is concerned, is a mystery.
There was no proof that there was dynamite (or indeed any explosive) ever in the shanty, much less proof that the defendant ever put of kept dynamite therein. Consequently the contention that the explosion was caused by dynamite rests on inference. The proof relied upon for the inference is the violence of the explosion, the testimony of defendant P. Reilly, when called by the plaintiff, that he believed “the force of dynamite was downwards,” the testimony of an inspector of combustibles that the floor of the shanty was broken where the stove used to rest, and the fact that the defendants had dynamite in their possession at this time for use in their work. But of course there could be other causes for such an explosion, though none is suggested, and, therefore, it was not necessarily attributable to dynamite; and the testimony of P. Reilly quoted is merely descriptive and not
I think that it cannot be said that the proof placed the plaintiff beyond the province of the jury so that the defendants were not entitled to have the jury consider whether the plaintiff had made out her case before the jury came to the question of their negligence. In fine, the charge was tantamount to saying to the jury, The court submits this case to you to determine the liability of the defendants for negligence, with the peremptory instruction that the proof is sufficient to require the defendants to explain this accident, and not that the proof is sufficient to justify your determination that it required the defendants to go forward with proof in explanation. I think that the instruction is not justified by the case.
It is true that the defendants did not even attempt to explain. The accident in itself made such a task difficult if not impossible. For the c ‘ res ” — the thing — occurred in a vacant shanty. And the “ res ” was self-destructive. There is no positive proof of the cause of the explosion. The plaintiff undertook to prove it by inferences.- The defendants made denial of the truth of the plaintiff’s conclusions in so far as they involved the defendants, and gave proof relevant to the facts relied upon by the plaintiff, which proof was directed against her inferences. If dynamite was in the shanty, it is possible and not unreasonable that some person other than the defendants or their servants had placed it there. Such an act naturally would have been one of stealth, whether the motive was mischief or jealousy of the defendants or some employee, or revenge or spite. Acts of similar character are not unknown in the business
The learned counsel for the respondent cites our decision in Miller v. Uvalde A. P. Co. (134 App. Div. 212), but the discussion of the maxim “res ipsa loquitur ” in that case refers to the right of the jury to attribute an accident to a specific cause upon circumstantial evidence, even though surmise or conjecture might otherwise account for it; while the question in this case is as to the right of the court to instruct the jury peremptorily.
As I have said, the case was tried upon the theory of negligencé. The plaintiff also pleaded that the defendant used and kept dynamite in violation of the ordinances of the city and the laws of the State. This allegation was denied by the defendant, who, without plea, testified without objection that he “had a permit for the handling of the dynamite ón this job, ” and who offered a permit therefor in evidence, also without objection. If there was a causal relation between the dynamite kept by the defendant and the explosion shown by proof, the defendant might be liable for the maintenance of a nuisance, if it were shown either that the permit had been violated or that the dynamite had been negligently or improvidently kept. (People v. Sands, 1 Johns. 78, particularly the opinion of Kent, Ch. J.; Kinney v. Koopmann, supra; Murphy v. City of New York, 128 App. Div. 463.) The opinion in Kinney v. Koopmann (supra) is ahnost a treatise upon the subject. Or even liability might be established within the principles of Heeg v. Licht (80 N. Y. 579) and Prussak v. Hutton (30 App. Div. 66).
Carr, Stapleton and Putnam, JJ., concurred; Thomas, J., voted to affirm as to the defendant Thomas A. Reilly, with costs, and to dismiss the complaint as to the defendant Patrick Reilly, without costs.
Judgment and order reversed and new trial granted, costs to abide the event.