March 11, 1910.
Henry A. Powell, for the appellant.
John A. Garver, for the respondent.
Plaintiff resides in apartments at Nos. 90-92 Allen street in the city of New York. On January 25, 1907, two men with badges on their hats came into her room about one o'clock in the afternoon, and after some minutes spent therein did something which she describes as locking the gas meter, and returning about three o'clock in the same afternoon unlocked it. At about three-thirty in the afternoon an explosion took place in the cellar of the house wherein plaintiff's apartments were located, which was of great severity, and as a result of which partitions in the cellar were blown away glass was broken throughout the house as well as in adjoining houses in those across the street and throughout the neighborhood. A policeman in the station house a block and one-half away describes the sound as resembling that of a three-inch gun. As a result of this explosion plaintiff, who was still in her apartments, sustained the injuries for which she seeks to recover in this action.
While the plaintiff herself was unable to tell what was inscribed upon the caps of the two men who visited her apartments, it can fairly be inferred from the testimony that they were the employees of the defendant company. The testimony disclosed that when Bessie Cohen was in the cellar at about one o'clock of the afternoon of the day in question she saw no one else there, but when she returned at about a quarter of two, on her return from lunch, she did see some one there with a light. About three-fifteen in the afternoon Ruth Cohen went down into the cellar to recover a ball with which she had been playing and there she saw two men, one with a candle and the other with a kind of a light with "flame going out" of it, as she described it.
Within a minute and a half after the explosion, Officer Hackett went down into the cellar to make his investigation and saw that partitions had been blown out and that glass had been broken throughout the house, and even across the street. When he went into the cellar he found two men there each wearing a blue cap with a round metallic badge marked "Consolidated Gas Company." In this testimony he is corroborated by Officer Donohue. Upon this testimony the plaintiff's complaint was dismissed. This, we think, was error.
When it appeared that the two men who were present in the cellar with exposed lights were the employees of the defendant company, as might fairly have been inferred from the evidence, and when it had further appeared that they were present in the cellar with these lights and with gas present therein, having previously done acts in the premises which indicated that they were at work in some way upon the pipes supplying gas to the house, a prima facie case was established. The mere failure to account for the absence of injury to the defendant's two employees does not prevent the plaintiff from recovery. It may well be that they were in some position that shielded them from the force of the explosion, but that is not for the plaintiff to establish. She is entitled to the most favorable inferences to be drawn from the testimony when a motion to dismiss is made, and as it can be fairly inferred from the testimony that defendant's employees were working in the cellar with exposed lights with gas present in quantities sufficient to be perceptible to the senses, a prima facie case has been established.
The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
CLARKE, SCOTT and MILLER, JJ., concurred; McLAUGHLIN, J., dissented.
I agree with Mr. Justice DOWLING that the plaintiff is entitled on this appeal to "the most favorable inferences to be drawn from the testimony," but this does not aid her. The facts proved, and every legitimate inference to be drawn therefrom, do not show a single negligent act on the part of the defendant or its employees. The testimony offered on the part of the plaintiff fairly tended to establish that two of the defendant's employees were, shortly prior to the explosion, working with a lighted candle and lamp in the cellar of the building where the explosion occurred; that before the explosion these two employees locked and subsequently unlocked the gas meter in the plaintiff's apartment, and that some few minutes before the explosion the odor of gas (what kind of gas does not appear) was noticed in the cellar. The negligence of the defendant cannot be predicated upon the fact that the gas meter in the plaintiff's apartment was locked and unlocked, or that the defendant's employees went into the cellar, a dark place, with lights for the purpose of inspecting or repairing, if that be conceded, of which there is no proof, gas meters or pipes there located. That the lights did not cause the explosion at the time the odor of gas was noticed in the cellar is evidenced by the fact that the explosion did not take place until some little time thereafter. There is no evidence whatever from which it can be inferred that the defendant's employees were negligent in any respect, or that their presence in the cellar was the cause of the explosion. The fact that an explosion occurred did not, of itself, establish the negligence of the defendant ( Cosulich v. Standard Oil Co., 122 N.Y. 118; Krzywoszynski v. Consolidated Gas Co., 4 App. Div. 161; Schaum v. Equitable Gas Light Co., 15 id. 74), nor can its negligence be predicated "upon a conjecture built upon a bare possibility." ( Egan v. Dry Dock, E.B. B.R.R. Co., 12 App. Div. 556.) Before the plaintiff could recover she was bound to establish some specific act of negligence or offer evidence from which the same could be inferred upon the part of the defendant which caused the explosion. ( Morris v. Railway Co., 148 N.Y. 182; Dobbins v. Brown, 119 id. 188; Bond v. Smith, 113 id. 378; Kirby v. D. H.C. Co., 20 App. Div. 473.) There was no evidence which would have justified the jury in finding in favor of the plaintiff and for that reason the complaint was properly dismissed. Had the case been sent to the jury and a verdict rendered in favor of the plaintiff I do not see how it could have been permitted to stand, because it would have for its foundation not evidence, but a mere surmise or guess on their part, and this is not enough.
For these reasons I vote to sustain the judgment.
Judgment reversed and new trial ordered, with costs to appellant to abide event.