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First Department, July, 1911.

(Vol. 146. Bayard H. Ames [John Montgomery and Walter Henry Wood with him on the brief], for the appellant.

Moses Feltenstein, for the respondent.

LAUGHLIN, J.:

On the 4th day of October, 1909, the plaintiff was working as a milliner on the second floor of the building known as No. 1772 Division street, in the borough of Manhattan, New York, and sustained personal injuries in an effort on her part and on the part of others employed with her to escape from impending danger resulting from explosions, flame and smoke, caused by a short circuit produced by contact between the cable of a derrick and the shoe attached to an electric car on a passing train on the Second Avenue Elevated railroad of the appellant in the street adjacent to the building on the west, and this action is brought to recover her damages.

The contention of the appellant was that the short circuit was caused by the acts of an employee or employees of the Terry & Tench Company, which had a contract with the appellant for lowering its elevated structure at the place of the accident, pursuant to the requirements of a contract made between the city of New York and the appellant.

Evidence offered by the appellant to show the making of these contracts, and that the derrick to which the cable was attached was operated by the employees of the Terry & Tench Company was excluded, and an exception was duly taken to the ruling. The evidence tended to show that the work of lowering the elevated structure was conducted under the supervision of engineers employed by the appellant, and tendeā to show that the derrick was actually operated by the employees of the contractor, but the appellant was not permitted to make the proof on this point entirely clear. The evidence shows that the derrick was so placed on the easterly side of the track that the cable when suspended from it would not come in touch with any part of a passing train, and that while the derrick and cable were in the same position they occupied at the time the train in question was permitted to pass, many other trains had passed in safety. It appeared that if the lower end of the cable were attached to a part of the structure underneath

App. Div.]

First Department, July, 1911. the track it might be brought in contact with the shoe of a car of a passing train if the cable was moved while the train was passing, and that a short circuit could not otherwise have been produced. That the cable was moved while the train was passing is demonstrated by the fact that other like shoes, projecting an equal distance over the rail on the same side of the train, which consisted of seven cars, passed the cable without contact, and that the contact was between the rear shoe of the rear car of the train and the cable. There is some slight conflict in the evidence as to whether or not there was a third rail at the point in question; but the testimony of those in a position to know best all tends to show that there was no third rail at that point at the time of the accident, and there is no evidence that the shoes on the easterly side of this train which was going northerly were in contact with a third rail. The shoes extended about seventeen or eighteen inches beyond the rail of the track on which the train was running, and to within about one inch of the ends of the crossties, but not beyond them. The gin pole of the derrick and the cable, when in a perpendicular position, were beyond the ends of the crossties. The cable could only be brought in contact with the shoe of a car by pulling a load from underneath the track, which might bring it between the ends of the crossties, or by allowing it to slacken so that it would not maintain a perpendicular position. There is no evidence that the manner in which the work was being done was not safe if proper care had been exercised by those operating the derrick. The plaintiff was not a passenger, and the only duty which the appellant owed to her was that which it owed to all people lawfully in the vicinity, to exercise ordinary care. If the evidence thus excluded had been received the jury might have found that the only negligence was on the part of employees of the contractor. We think it was error to exclude it.

We are also of opinion that the court erred in instructing the jury with respect to the law applicable to the case. The last instructions given to the jury were contained in a request made by counsel for the plaintiff, which the court charged as follows: “That if the jury find while said plaintiff was sitting at her work near the window facing the

First Department, July, 1911.

[Vol. 146. tracks of the defendant on the second floor of 1772 Division Street, and at that said time one of the trains of the defendant proceeded and passed the aforesaid premises, and while opposite the aforesaid window where the said plaintiff was sitting, three terrifically loud reports issued from underneath the aforesaid train, followed by three large streams of fire, which struck and entered into the window at which the said plaintiff was sitting, and causing a panic among the employees who were sitting in the room with the said plaintiff, as a result of which said plaintiff and the said other employees became frightened and ran from the room, causing the plaintiff to be thrown down, whereby she sustained severe injuries, there arises a presumption of negligence on the part of the defendant."

Counsel for the appellant duly excepted to this charge, whereupon counsel for the plaintiff said, “Which may be explained or rebutted,” to which the court replied, “Which may be explained, yes.” The court in the main charge in effect applied the rule of res ipsa loquitur to the case, and an exception was also duly taken thereto. In the circumstances, in view of the work of lowering the elevated structure which was being carried on, it is at least doubtful whether the rule of res ipsa loquitur was applicable to the case at all, but if it were it is quite clear that it does not aid in fixing the responsibility for the short circuit on the appellant. Moreover, the court in these instructions overstated the rule, and in effect charged the jury that the facts stated in the request gave rise to a presumption of negligence on the part of the defendant as matter of law; whereas, even if the rule of res ipsa loquitur were applicable, a presumption of negligence as matter of law does not arise, but the facts with respect to the happening of the accident are sufficient to present a prima facie case, upon which the jury may, if no evidence be offered on the part of the defendant, infer negligence.

It follows, therefore, that the determination of the Appellate Term should be reversed and the judgment and order of the City Court should be reversed and a new trial granted, with costs to appellant in this court and in the Appellate Term to abide the event.

INGRAHAM, P. J., MCLAUGHLIN, MILLER and DOWLING, JJ., concurred.

App. Div.)

First Department, July, 1911. INGRAHAM, P. J. (concurring):

I concur with Mr. Justice LAUGHLIN, but I also think that the facts were not sufficient to justify a finding that the defendant was guilty of negligence, and, therefore, the complaint should have been dismissed.

Determination, judgment and order reversed, with costs in this court and in Appellate Term to abide event.

NATHAN SCHACHTER, Respondent, v. INTERBOROUGH RAPID

TRANSIT COMPANY, Appellant.

First Department, July 7, 1911.

See head note in Schachter v. Interborough Rapid Transit Co. (ante, p. 139).

APPEAL by the defendant, the Interborough Rapid Transit Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of February, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of June, 1910, upon the verdict of a jury for $150, and also affirming an order of said City Court entered on the 22d day of August, 1910, denying the defendant's motion for a new trial made upon the minutes.

Bayard H. Ames [John Montgomery and Walter Henry Wood with him on the brief], for the appellant.

Moses Feltenstein, for the respondent. PER CURIAM:

This action is brought by the father of Pauline Schachter to recover damages alleged to have been sustained in consequence of the personal injuries received by her, she being an infant. The facts, excepting with respect to the question of damages, are the same in this case as those presented by the appeal in the case of Pauline Schachter against the same appellant (146 App. Div. 139), argued and decided herewith; and on the

Fourth Department, July, 1911.

(Vol. 146. authority of the opinion in that case the determination of the Appellate Term is reversed, and the judgment and order of the City Court are reversed and a new trial granted, with costs to appellant in this court and in the Appellate Term to abide the event.

Present- INGRAHAM, P.J., MCLAUGHLIN, LAUGHLIN, MILLER and DOWLING, JJ.

Determination, judgment and order reversed, with costs in in this court and in Appellate Term to abide event.

ALBERT G. DICKINSON, Respondent, v. SMITH SHELDON,

Appellant.

Fourth Department, July 11, 1911.

Contract - printing catalogues substantial performance — when rule

applicable — what must be shown in order to invoke rule.

The rule permitting one who has substantially performed a contract to

recover thereon applies only where the defects or omissions in the work may be remedied or cured so that the work will then correspond with the contract, or where the other party may be fully compensated in money for

the slight damage done him by the failure fully to perform. The rule is based on the theory that it is unfair and unjust for one who

has reaped the benefit in nearly full measure of another's labor to refuse

to pay for the work actually done in accordance with the contract. The rule of substantial performance is applicable to a contract for print

ing catalogues illustrated with tinted half-tones made by running the cuts twice through the press, once for the black impression and again for the gloss tint, provided the facts are such as to enable the vendor to

invoke that rule. Where, however, in an action to recover on such a contract it appears

that, although the sample illustration furnished was practically perfect, so many of the half-tones in the catalogues were blurred because of a failure to have the two impressions in exact register as to make the catalogues worthless and it is not pretended that the defects, which were neither trivial nor unimportant, could be remedied or that defendant could be compensated therefor, the rule of substantial performance does not arise and the defendant is under no obligation to accept and pay

for the catalogues. The purchaser had a right under his contract to have half-tones in

perfect register as shown by the sample.

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