Cavanagh v. O'Neill

O’Brien, J.:

In determining the correctness of the ruling made in dismissing a complaint, it. has been many times said that all the facts proven must be taken most favorably for the plaintiff, and the dismissal cannot be supported unless the inferences to be drawn from the circumstances are certain and incontrovertible, and as to which persons cannot differ. In this case, therefore, the motion to dismiss should have been denied if any inferences from the facts warrant the conclusion that the defendant was negligent. ■ While the plaintiff contends that her proof justified the inference that in any one of these aspects the defendant’s negligence was shown, it.is only necessary for us in disposing of this appeal to consider one of them, together with certain rules in excluding evidence, which we think render necessary a reversal of the judgment. . The testimony tended to show that the place in which the plaintiff was put to work was a dangerous place, rendered so by a combination of circumstances, with none of which had she any connection either by reason of her action or knowledge. As shown by the proofs, there was placed over her head a figure or model which was in a defective condition on account of the rod becoming bent so. that the loaded figure was out of poise. The base of the figure was narrow, and a tin socket originally attached thereto was absent, so that the figure was liable to be shaken whenever it’was affected by the moving of furniture on the floor above; and it was also left in doubt as to whether it could not be moved by a current of air which came through an open window behind it. Besides, its situation on the flat top of the showcase in front of such window, in connection with its liability to be affected by currents of air, was an element of danger. Again, we have the omission to provide some protection against the figure on top of the case falling when thus exposed to the danger of being blown or jarred, or pulled over. These, added to the fact that the plaintiff was in a narrow place, only two feet two inches wide, in which it' was her duty to stand, present a state of facts and circumstances from which the jury might have inferred that she was put to work in a dangerous place. It cannot, aS matter of law, be held upon the proof that she knew of the facts and circumstances which so rendered it dangerous, but on this question she was entitled to go to the jury.

It is urged, however, that the placing of the figure in a defective condition on the showcase, and in proximity to an open window, or one that was likely to be open, was the act of a fellow-servant for which the master was not responsible. On this subject we need only repeat the rule that it is the duty of the- master to provide a safe place for his employee, and that for an omission to perform this ■duty, whether it arises from his own act or from the acts of those to ■whom he may delegate the discharge of that duty, the master is •liable.

We think, also, that in his construction of the complaint, as well ;as the tendency of the evidenec, the learned trial judge erred in assuming that the plaintiff’s cause of action was based entirely upon the defective model, and did not give sufficient weight to allegations ■in the complaint and to the facts proven, which tended to show that the defective condition of the case coupled with the other facts rendered the place dangerous.

We think a like error was committed by the judge in refusing to permit proof that other models, irrespective of their construction or ■condition of repair, had previously fallen, under like circumstances, from this showcase at the same place. Such evidence, we think, was competent as fending to show that a figure so placed would be liable to overturn and fall, no matter what its condition, and it would follow that one defectively constructed would be equally liable to fall when exposed to like conditions. (Quinlan v. City of Utica, 11 Hun, 217; affd., 74 N. Y. 603; Gillrie v. City of Lockport, 122 id. 407; Brady v. Manhattan Ry. Co., 127 id. 50.)

Our conclusion is that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

. Judgment reversed, new trial ordered, costs to appellant to abide event.