Citations
- 178 A.D. 169
Full opinion text
Putnam, J.:
The theory that through pneumatic leaks this gig fell and fatally injured the decedent is opposed to the uncontradicted fact that the next morning, when the body was first discovered, the gig was in its place alongside the upper tier of ice, in good order. This shaft being to raise a cake of ice edgewise, left little room for a man at the bottom to move from an upright position. The gig carried the ice on iron strips. Had such an object delivered the fatal blow, this tall man, in such a narrow shaft, would hardly have room to bend over and take the blow below the dorsal vertebrae. On the other hand, if deceased had slipped from the ice above, and fallen, feet first, down this shaft, the upright beam or bunker at the foot might have made such a contact and internal injury as the surgeon found. The duty to repair this shifter rope required Meissner, to go to the break in the line above, and did not call him to the foot of this shaft. The suggestion of the gig falling, through air leakage above, was a hypothesis, which failed to explain and reconcile such facts as the normal position in which the gig was found, with no indications of air escape, and all operating parts in shape to resume running with no other repair than reconnecting this shifter line. There being no proof of defects, and no omission by defendant to inspect, if this gig in some mysterious way did cause this injury, still that would not establish actionable negligence. In the absence of defects or of traces of air leakage, or other indication of some neglect, the verdict should not stand.
I advise that the judgment and order be reversed, and a new trial granted, costs to abide the event.
Jenks, P. J., and Blackmar, J., concurred; Mills and Rich, JJ., dissented.
Judgment and order reversed on reargument, and new trial granted, costs to abide the event.