Bien v. Unger

• Decision Date: 18 June 1900
• Citation: 46 A. 593,64 N.J.L. 596
• Parties: BIEN v. UNGER et al
• Court: New Jersey Supreme Court

46 A. 593

64 N.J.L. 596

BIEN

v. UNGER et al

Court of Errors and Appeals of New Jersey.

June 18, 1900.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Joseph Bien against Herman Unger and others. Judgment for plaintiff. Defendants bring error. Reversed.

Samuel Kalisch, for plaintiffs in error. Edward M. Colie, for defendant in error.

GARRISON, J.The plaintiff recovered a judgment for damages received while operating a machine furnished him by the defendants. The relation between the parties was that of master and servant. The declaration, after stating that it was the duty of the master to use due care to provide a safe machine and to keep it in a safe condition, alleged that he negligently let it "be and remain" out of order, by reason of which the plaintiff was injured.

The alleged vice in the operation of the machine was that a trip hammer that should have remained suspended above a die until released by pressure upon a treadle descended without apparent cause, crushing the hand of the plaintiff while he was in the act of feeding metal to the die. Why the hammer so descended did not appear in the case. The testimony as to facts does not suggest any explanation that accounts for it, while the explanation put forward to account for it wholly lacks any facts to support it.

With respect to this accident nothing is proved excepting that it happened, and, if it happened without interference with the treadle, no hypothesis whatsoever has been advanced to account for it that has the slightest foundation in the testimony. Now, the issue tendered by the narr. placed upon the plaintiff the burden of proving something by preponderance of proof,—something that was, to say the least, more consistent with the negligence of the defendants than it was with their innocence.

This right of the defendant to have his plaintiff bear the burden of the affirmative is a substantial one, and not a mere matter of form. McGilvery v. Power Co. (N. J. Err. & App.) 44 Atl. 637.

This burden may be borne by direct proof of some negligent act, or by the proof of circumstances from which the defendant's want of due care is a legitimate inference.

In the present case it is not pretended that there was any direct proof of negligence. Indeed, it cannot be seriously contended that at the close of the case any one could say what caused the machine to act as it is said to have done, still less to indicate what part of it was defective or out of order, or whether any part of it was. An occurrence that remains unaccounted for after the extraordinary scrutiny to which this one has been subjected cannot, with any show of reason, be said to have been discoverable by the exercise of ordinary care.

At one time it seemed to me that this judgment might be sustained upon the ground that the history of this particular machine for such erratic and dangerous behavior was such that it was a question whether it was not negligence for the master, knowing this history, to permit the plaintiff to use it. This charge is fairly within the lines of the declaration, and was one of the grounds upon which the jury was instructed that the plaintiff might recover. The proposition of law is unassailable, but, after repeated readings of the testimony, I have not found any proof that this machine had ever before so acted that its behavior upon the occasion when the plaintiff was injured should or could have been anticipated.

It is true, and not controverted, that there were prior occasions upon which the hammer had descended when it should not have done so; but in every such instance it is also true, and not controverted, that the vice in its operation was due to some obvious mechanical disorder, by reason of which some part broke away from the rest, or became jammed, or worked loose and remained so until relieved by readjustment or repair. One witness only (Charles Biel) testified in chief that when this machine was out of order two years before the "hammer would go up and down," but upon cross-examination he specifically explained that the trouble to which he had then referred...