Kennedy v. McAllaster

Adams, J. (dissenting):

The evidence upon the part of the plaintiff, in my opinion-, falls far short of furnishing a reasonable or satisfactory explanation of the cause of the accident to which he attributes his injuries. The most that can be gleaned from it is that the elevator fell; that in falling some portion of the platform was broken, and that after the accident it was discovered that the woodwork was somewhat decayed; and we are asked to infer from this circumstance that the elevator fell because of the rotten condition of the wood of which it was constructed. It is perfectly obvious, however, to my mind, even upon the plaintiff’s evidence, that this was not the case, and when we come to examine the record further it is equally obvious that the accident was attributable to the breaking of one of the wire cables which supported the elevator and by means of which it was raised and lowered.

Edward B. Steele, a witness for the defendants, whose duty it was to look after the elevator, testified that he examined it shortly after the accident occurred and found that the cable on the south side had snapped in two, leaving a piece about six inches in length attached to the bracket; that the north side was intact, and that the effect of this breakage was to drop the south end of the elevator platform, which is the precise condition in which it was found, according to the undisputed evidence.

John H„ Humburch, one of the defendants, testified that he examined the cable immediately after the accident and discovered that it was broken about six inches from the top on the south side.

Albert Humburch, another of the defendants, testified to the same effect, as did John Jack, a young man in the employ of the defendants, and nobody pretends to contradict this evidence.

It also appears that the cable which broke was a new one which had been attached to the elevator by the owner of the premises only about a year prior to the accident. It had been inspected from time to time by the defendants and no defect had ever manifested itself ; indeed, after the cable parted there was nothing to indicate that the defect in it would have been discovered upon the closest inspection. It follows, therefore, that if the accident was caused by the parting of this cable, the defendants could not in these circumstances be held responsible therefor.

It is said, however, that the evidence in regard to this feature of the case is all furnished by the defendants or their witnesses, and that consequently it was incumbent upon the trial court to submit the case to the jury in order that they might determine what degree of credibility should be attached to this character of evidence. I cannot assent to this view of the case, for the reason, as already stated, that the defendants furnished the only rational or satisfactory explanation of the cause of the accident, and to permit a jury to say upon the exceedingly flimsy evidence furnished by the plaintiff that the accident was attributable to any other cause, would be equivalent to saying that they might render a verdict based upon nothing more substantial than conjecture and speculation.

I am, therefore, of the opinion that the learned trial court was justified in dismissing the plaintiff’s complaint, and for this reason am constrained to dissent from the prevailing opinion.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.