#### James McDonough, Respondent, *v.*The James Reilly Repair and Supply Co., Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

Biegligence — Injury to applicant for work — Evidence.

Where the evidence in an action to recover for personal injuries to plaintiff, an applicant for work at defendant’s machine shop, caused by the accidental fall of a battering ram, near the place where plaintiff was standing, considered in the light most favorable to plaintiff, is equally consistent with the absence as with the existence of negligence, it is insufficient to fasten liability upon the defendant.

'Appeal by defendant from a judgment of the City Court of the city of New York, entered upon a verdict for the *110plaintiff, and from an order denying defendant’s motion for a new trial.

Robinson, Biddle & Ward (Artemus Ward, Jr., and Norman B. Beecher, of counsel), for appellant.

Gifford, Hobbs, Haskell & Beard (Anson M. Beard, of counsel), for respondent.

Greenbaum, J.

I do not think that plaintiff maintained the burden, which was upon him, of presenting facts, establishing the defendant’s negligence, or from which an inference of such negligence might fairly arise.

As was said by this court, upon an appeal from a previous judgment entered in this action (45 Misc. Rep. 334, 335), “ the mere happening of the accident would raise no presumption ” of defendant’s negligence. :

The only testimony from which it could possibly be argued that the negligence of defendant was established or inferable, was to the effect that when plaintiff called at defendant’s premises on the Saturday immediately preceding the Monday morning when the accident happened, he saw twoi battering rams in an upright position at or near the place where he was standing at the time of the accident, and that they could be easily toppled over by a touch. It may also be assumed that it might be inferred from plaintiff’s testimony that immediately after the accident he identified the ram that fell upon- him and another ramb which was then standing upright, as the rams, which he saw on the previous Saturday, and that the upright ram was in the same position as when he had then seen it.

There is, however, no evidence, which might suggest that the falling of the ram was due to the negligence of the defendant or its servants, unless the fact of permitting a ram to remain in such a position that, by reason of its construction and condition, it was liable to be knocked down by a push,-was in itself a negligent act.

But nomegligence may be predicated upon the mere fact that the ram, which is a mere movable appliance or tool in *111a workshop, found on the Saturday previous at noon in an upright position, easy to be toppled over, had not been placed in a position of security by seven o’clock on the morning of the Monday following.

It was not shown that the rams had been kept in a dangerous position for such a length of time as would justify a jury in finding that defendant had knowledge of -the danger to which a visitor might be subjected in standing near them,, nor was any testimony offered that the rams were put in the alleged dangerous position by any servant of the defendant.

A finding of negligence upon such a state of facts would be idle speculation and surmise, and in defiance of the well-settled rules of law applicable to negligence cases.

Even if considered in a light most favorable to plaintiff, the situation presented was one *“*equally consistent with the absence as with the existence of negligence,” and, therefore, insufficient to fasten a liability upon defendant, Ruppert v. Brooklyn Heights R. Co., 154 N. Y. 90, 94.

The motion to dismiss the complaint should have been granted.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

Scott and Leventbitt, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.