I am unable to concur in the affirmance of the judgment appealed from. There is no doubt that the plaintiff was injured and, if he is entitled to recover any damages at all, the verdict in his favor is not unreasonably large.
The difficulty I find is that, as I read the evidence and understand the law, the plaintiff failed to prove a cause of action for any damages at all.
The plaintiff was a visitor at the association building in Brooklyn. It is conceded that he was an invitee and that defendant owed him the duty of ordinary care. (Hart v. Orennell, 122 N. Y. 371.) He was sitting on a settee waiting for a friend, while two employees of defendant were engaged in moving’ an upright piano from one part of the hallway to another. As the piano approached the place where plaintiff was sitting and when defendant’s employees were about to change its course, or were in the act of so changing it, the piano toppled over and fell against plaintiff’s hand, crushing his thumb. The method of moving the piano was by placing it upon a small four-wheeled truck, and so wheeling it from place to place. This particular truck had been in use for several years for this pujóse and the piano had been moved by this means very many times, at least a hundred and probably more. The employees engaged in the work had had great experience, having been accustomed to move the piano in the same way, and by means of the same appliance every Sunday for a number of years. It did not appear that any similar accident had ever happened before.
No evidence was given of any departure by the employees from their usual methods when called upon to move the piano, and no particular act or failure to act on their part is pointed out as the cause of the accident. The plaintiff was content to *677rest upon proof of the happening of the accident, asking the jury to find from the bare fact that an accident happened that it was due to some negligence, not specified, on the part of defendant’s employees.
No rule of law is better settled than that the mere fact that an accident happened is not sufficient to fasten a charge of negligence upon a defendant. As said by Judge Martin in a dissenting opinion in Cassidy v. Uhlmann (170 N. Y. 534): “A jury will not- be permitted to base a verdict upon surmise, upon mere food for speculation, or to enter into the realm of conjecture, to find a verdict.” An apparent, though not real, exception is found in those cases in which the nature of the accident and the surrounding circumstances in themselves impute negligence,, because, according to the common experiences of mankind the accident would not have happened unless the defendant had been negligent. In such cases not the accident alone, but the accident and the surrounding circumstances themselves, furnish prima facie evidence of negligence, and, as it is said, res ipsa loquitur. It certainly cannot be said, as it seems to me, that the nature of this particular accident was such that nothing but defendant’s negligence could have caused it. Many other things might have contributed thereto.
The effect of affirming this judgment, as it seems to me, is to lay down the law that if a plaintiff is unable to prove what caused an accident he may fall back upon the res ipsa loquitur rule, and ask the jury to guess that defendant was negligent. That certainly would be a new departure in the law of negligence. “ The defendant was not required to account for what struck the plaintiff. An unusual occurrence, resulting in injury, does not, of itself, raise the presumption of neglect on the part of the person who is charged with the performance of some duty. The accident must be such as necessarily to involve negligence.” (Eaton v. N. T. C. & H. B. B. B. Co., 195 N. Y. 267.)
The fact that the piano had frequently been moved in the same way is strong evidence that the method adopted was not ' dangerous. {Duke v. American Museum of Natural History, 157 App. Div. 637.) “Failure to guard against that which has never occurred, and which is very unlikely to occur, and which. *678does not naturally suggest itself to prudent men as something which should be guarded against, is not negligence. ” {Ryan v. Cortland Carriage Goods Co., 133 App. Div. 467.) “The rule of reasonable care must be considered, not in the light of the accident which happened, but with reference to what ordinary prudence should have anticipated as likely to happen.” {Johnson v. City of. New York, 208 1ST. T. 77, 83.)
If negligence cannot be imputed to defendant by reason of the method adopted to move the piano, it must be found in some act of omission or commission on the part of the employees engaged in the work, and no such act is shown. The plaintiff asks us to hold that they must have been negligent in some way, which he does not point out, else the accident would not have happened. That is not the accepted way to prove negligence.
I also think that the court erred in submitting to the jury the question whether the truck was “ an adaptable or adequate means, so far as safety is concerned, to transfer that piano from one place to another.” There was no claim in the complaint that the means so used were inadequate, and while there is a hint of such a claim in the plaintiff’s bill of particulars, it is well settled that a hill of particulars cannot he used to enlarge the allegations of the complaint. {U. 8. Printing & IÁthograph Co. v. Powers, 171 App. Div. 406.) The sufficiency of the truck was not an issue in the case and should not have been submitted to the jury.
The judgment and order should be reversed and the complaint dismissed.
Page, J., concurred.
Judgment and order affirmed, with costs.