The trial justice submitted the case to the jury on several theories, in effect holding that the defendant was liable if it failed to show that it had not caused the accident.
The court charged the jury as follows: “ The defendant, as I have stated, not knowing how the accident happened, and not being in a position to offer witnesses, simply contends that the plaintiff’s version as to how the accident must have happened is unreasonable, improbable, and that, therefore, the defendant should not be held hable. It is one of those cases which come under the head of the doctrine which we call ‘ res ipsa loquitur,’ which, translated, means, ‘ the thing speaks for itself.’ In that particular kind of case plaintiff is required to put in his proof to show the thing happened which speaks for itself, and then the defendant must offer such explanation as he can.
“ It is the duty of the defendant to carry forward the proof and satisfy you how the accident happened, and that it was not the defendant’s fault, or, on the other hand, to convince you from the plaintiff’s evidence alone that it could not have happened that way within any reasonable probability.”
The plaintiff failed to complete the proof necessary to submit the case to the jury. It was not established by whom the lime was thrown which entered the eye of the boy.
This case clearly comes within the rule laid down in Wolf v. American Tract Society (164 N. Y. 30), where it was said: “ There was no proof to identify the person in or about the building as the immediate author of the wrong. Of all the numerous persons engaged in or about the work the jury could not have imputed the accident to any one of them more than another. * * *
“ We agree with the court below that this is a case where the maxim res ipsa loquitur applies. There is a presumption that the plaintiff’s injury was the result of negligence. (Mullen v. St. John, 57 N. Y. 567; Hogan v. Manhattan R. Co., 149 N. Y. 23; Kearney v. London, etc., Ry. Co., L. R. [5 Q. B.] 411; Volkmar v. Manhattan R. Co., 134 N. Y. 418.) But that presumption did not complete the proof which it was incumbent upon the plaintiff to make before the case could be submitted to the jury. In a case like this, where the building in process of construction is in charge of numerous contractors and their workmen, each independent of the other, *149and none of them subject to the control or direction of the other, some proof must be given to enable the jury to point out or identify the author of the wrong.”
I have been unable to find any evidence to the effect that the employees of the defendant had anything to do with the lime that caused the injury.
The prevailing opinion calls attention to the fact that the two laborers employed by the defendant were not called as witnesses. Their absence Was accounted for by the testimony of defendant’s witness.
The rule laid down by the majority of the court in this case casts the burden on the defendant of showing how the accident occurred. That burden was at all times on the plaintiff. (Jack v. McCabe, 56 App. Div. 378; Plumb v. Richmond Light & Railroad Co., 195 id. 254; Tobias v. Lewis, 182 id. 598; Francis v. Gaffey, 211 N. Y. 47; Halsch v. Cornell Co., 49 Misc. 525.)
The judgments should be reversed and a new trial ordered.
In each case: Judgment affirmed, with costs.