(concurring). Plaintiffs sue to recover damages to their stock of goods caused by water escaping from a pipe which leaked. Plaintiffs’ claim was that this water pipe, which ran across the street on which plaintiffs’ premises were situated, had been pierced by workmen employed- by defendant in digging a trench on the street some ten days before the damage was caused.
At the close of plaintiffs’ case, defendant moved for a dismissal stating his grounds adequately. To sustain the denial of this motion plaintiffs appeal to the doctrine of res ipso loquitur. It is substantially conceded by both sides that the mere fact that defendant’s workmen had previously dug a trench in the street would afford no justification for the application of this doctrine unless the hole in the pipe was shown to have been either within the line of the trench so dug or in so close proximity to it as to amount substantially to the same thing. A careful search of the record discloses no intelligible testimony to that effect, but only the vaguest intimation in that regard in the testimony of one of the plaintiffs. Indeed, at the best, it *1066could not be regarded as more than a scintilla of evidence. Defendant’s testimony was to the effect that the hole was two feet seven inches from the line of the old trench.
Under these circumstances, the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.
SEABURY, J., dissents.