#### Hyman Gershowitz, Respondent, *v.*Louis Greenstein, Saul Greenstein and Louis Tachner, Doing Business Under the Firm Name and Style of Greenstein Bros. *&*Co., Appellants.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Master and servant — negligence — Employers’ Liability Act.

While plaintiff, a cutter in defendants’ hat shop, was walking to and fro at his work, a splinter from the floor entered the right side of his foot inflicting injuries, and, in an action under the Employers’ Liability Act to recover therefor, he testified that the floor was rough for about six inches about where the splinter came from, but did not prove that such alleged condition of the floor had existed for any time prior to the time of the accident, and a witness testifies that the floor was smooth when she cleaned it between eight and nine A. M. on the day of the accident, a verdict in plaintiff’s favor will be reversed and a new trial granted on the ground that under the statute there was no obligation on the defendants to inspect the floor for the purpose of discovering whether there was a splinter which might possibly become detached and enter a person’s foot.

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff after a trial by the court and a jury, and also from an order denying a motion for a new trial.

Lyman A. Spalding (Thomas J. Skelly, of counsel), for appellants.

Abraham Simonoff, for respondent.

Gerard, J.

This action was brought under the Employers ’ Liability Act by a servant to recover damages against his employers.

*497Plaintiff was employed as a cutter of hats in defendants ’ shop. Plaintiff was put to work at a bench and noticed that there were some dies near the bench weighing from 80' to 100' pounds, and these he pushed under a bench. In plaintiff’s work he walked to and fro along two tables joined together, about eighteen feet in length. The passageway on which he walked was about two and a half feet or three feet wide and plaintiff walked sideways as he performed his work. There was an ordinary wooden floor. While plaintiff was performing his work, a splinter from the floor entered the right side of his foot, inflicting the injuries for which he sues. Plaintiff testified that the floor was rough for about six inches about where the splinter came from. There was evidence from a witness who cleaned the floor between eight and nine a. m. that the floor was smooth and that he did not see any splinters or defects. Plaintiff did not prove that the alleged rough condition of the floor had existed for any time whatever prior to the time of the accident.

In Stelter v. Cordes, 146 App. Div. 300, plaintiff slipped while in a public bowling alley and ran a small splinter in his foot. The Appellate Division reversed the judgment for plaintiff. The opinion states that the splinter was but a small slender bit of wood; that the mere fact that the occurrence was in the premises of the defendants does not raise any presumption of wrong-doing, and that there was no proof of the existence of the splinter for any period prior to the occurrence, and there was no proof that the alley was defective in construction or condition, so that such a splinter might be a natural result of some defect thereof. That case was at common law. This case was brought under the Employers’ Liability Act, but I do not think that there was any obligation on the defendants to inspect the floor for the purpose of discovering whether *498there was a small splinter of the size in question which might possibly become detached and enter a person’s foot.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

G-uy and Page, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.