#### Albert Schorning, App’lt, v. The Knickerbocker Ice Co. Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed February 9, 1891.)*

Master and servant—Negligence.

Plaintiff, who was employed by defendant, was injured by reason of the breaking of a slat of a ladder he was climbing which caused him to fall upon the ice beneath. In an action for such injuries he did not show that there was any defect which was discoverable by inspection or known to defendant. He testified that it would not have broken if the upper part *28had been properly nailed, hut it appeared that it split lengthwise. *Held,*that there was no evidence to show that defendant was negligent, and that the complaint should have been dismissed.

Appeal from order setting aside verdict and granting a new trial.

Action to recover for personal injuries alleged to have been caused by defendant’s negligence.

The following is the opinion of the trial judge:

Bartlett, J.

I have carefully read over the stenographer’s minutes of the testimony given on the trial of this action, and a review of the evidence convinces me that there was not sufficient proof of negligence to take the case to the jury, and the motion to dismiss the complaint at the close of the plaintiff’s case should have been granted.

The plaintiff was an employe of the defendant, engaged, at the time of the accident, in storing ice in one of the defendant’s ice houses at Rockland lake. He was descending a ladder consisting of wooden slats fastened to upright tenders on the inner side of the ice house, when a slat that he was grasping with his hand gave way, in consequence of which he fell a considerable number of feet to the ice below, and was quite badly hurt. The slat split lengthwise and the portion which broke off went down on the plaintiff. He does not remember to have examined it subsequently, however, nor was it produced upon the trial, and we are utterly without information as to what was the defect, if any, in the slat which occasioned the accident.

It is true that the plaintiff was asked if the upper part of that slat had been properly nailed could it have broken off, and in the absence of objection he answered, “Ho, sir,” and this was testifying only to an inference and not to a fact, and subsequently the plaintiff declared that the wood did not draw out, “ the wood split off what I had in my hands.” A statement inconsistent with his inference that improper nailing caused it to give way.

So that the evidence does not really reveal or indicate what the defect was which led to the injury, if in fact there was any defect for which the defendant could be held responsible.

The obligation of the defendant to the plaintiff with reference to the ladder in question was two-fold. First, to furnish a ladder which in its original construction should be safe for the servants to use, and, secondly, to use reasonable care and diligence to keep it safe. Ho question arises here as to the original construction of the ladder or series of steps formed of slats from which the plaintiff fell. He had often been up the ladder before and there is no evidence to indicate that it was not perfectly safe when first built.

The defendant’s negligence, if any, must therefore be predicated upon the omission to maintain a ladder in a safe condition. But the plaintiff did not show that there was any defect in the slat that broke, or in its fastening, which would have been revealed upon inspection, or whether the defendant ever caused any inspection to be made or not, or that the defendant was ever notified of the existence of any defect.

He himself, though frequently using the ladder, had not noticed *29any. *“*The mere happening of an accident will not in all cases warrant a recovery by one receiving an injury ; there must be reasonable evidence of negligence.” See *Breen*v. *New York Central Railroad,*109 N. Y., 297; 14 N. Y. State Rep., 285.

It seems to me that the surrounding circumstances in the present case do not add enough to the single fact of the injury to warrant the inference that the defendant was negligent in failing to exercise reasonable care to keep the ladder in safe condition for the use of its employes.

Taking this view of the proofs after reconsidering it, as I have stated, I deem it my duty to order a new trial Motion to set aside the verdict and for a new trial granted, with costs to abide the event.

*C. P. Hoffman,*for app’lt; *Michael M. Forrest,*for resp’t.

Dykman, J.

The order appealed from should be affirmed on the opinion of the trial judge.

Barnard, P. J., and Pratt, J., concur.