Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415. The learned trial justice seems to have felt himself constrained to dismiss the complaint under the authority of the case of Ferrick v. Eidlitz, 195 N.Y. 248. It seems to me that the facts of that case are so different from the facts presented here, that it furnishes no aid to the solution of the question before us. The plaintiff in that case was directed to remove the roof of a temporary shed, primarily intended to protect some dynamos contained therein from dust.

For a discussion of the historical context in which the doctrine developed, see Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First Party Insurance Movement (114 Harv L Rev 690, 772-773 [2001]). ( Wiedmer v New York El. R.R. Co., 114 NY 462 [1889]; Cosulich v Standard Oil Co., 122 NY 118 [1890]; Flinn v New York Cent. Hudson Riv. R.R. Co., 142 NY 11 [1894]; Loudoun v Eighth Ave. R.R. Co., 162 NY 380 [1900]; Kay v Metropolitan St. Ry. Co., 163 NY 447 [1900]; Wolf v American Tract Socy., 164 NY 30 [1900]; Griffen v Manice, 166 NY 188 [1901]; Welsh v Cornell, 168 NY 508 [1901]; Crowley v Rochester Fireworks Co., 183 NY 353 [1906]; Duhme v Hamburg-American Packet Co., 184 NY 404 [1906]; Cunningham v Dady, 191 NY 152 [1908]; Robinson v Consolidated Gas Co. of NY, 194 NY 37 [1909]; Henson v Lehigh Val. R.R. Co., 194 NY 205 [1909]; Ferrick v Eidlitz, 195 NY 248 [1909]; Eaton v New York Cent. Hudson Riv. R.R. Co., 195 NY 267 [1909]; Conyes v Oceanic Amusement Co., 202 NY 408 [1911]; Hardie v Boland Co., 205 NY 336 [1912]). In Hogan v Manhattan Ry. Co. ( 149 NY 23 [1896]), the Court affirmed a judgment, based on a jury verdict, for a plaintiff who was hit by an iron bar that fell from an elevated railway, but did not use the phrase "res ipsa loquitur."

The box was placed but six or eight inches from the car step and there is no testimony of any kind to the effect that the place where or manner in which it was placed was careless, improper or negligent. All of the testimony in the case confirms the claim of the defendant that the box was level and firm and did not move prior to the plaintiff's stepping upon it. It is not a case for the application of the rule of res ipsa loquitur against the defendant. ( Welsh v. Cornell, 168 N.Y. 508; Ferrick v. Eidlitz, 195 N.Y. 248; Robinson v. Gas Co., 194 N.Y. 37; Lafflin v. Buffalo S.W.R.R. Co., 106 N.Y. 136, 139; Griffen v. Manice, 166 N.Y. 188; Henson v. Lehigh Valley R.R. Co., 194 N.Y. 205.) The rough surface of the fine crushed stone made the box more secure from slipping than it would have been if it had been on a smooth wood, stone or cement platform. If the plaintiff's unfortunate accident was the result of negligence on the part of the defendant it was not shown. It would appear rather to have been the result of the plaintiff's weight in connection with the lateral pressure on the box caused by the position of the plaintiff when he stepped thereon.

The proof must not be conjectural or speculative, but must consist of evidence which, tested by the ordinary rules of experience and observation, points to the single conclusion that the employer's omission of a duty which he owes to his employee was the sole efficient cause of the accident. ( Ferrick v. Eidlitz, 195 N.Y. 248, 252.) The next question, in logical progression, is whether the plaintiff has established his case by facts and circumstances which negative the existence of any cause for the accident by which he was injured, save the negligence of the defendant.

) The case cited for this proposition, Ferrick v Eidlitz ( 195 N.Y. 248), involved a worker who was injured while removing the roof of a temporary shed. The Court of Appeals held that the injured worker had not been placed on the shed to work from it but to remove it and that he was only owed the duty of ordinary care, not the protection of former section 18 Lab. of the Labor Law.