App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1898.

statute relating to the creation and division of estates.

But whether

there was or was not a trust, the whole duty to be performed by the executors was only to convert the estate into money or securities and make a division. The real effect of the contention of the defendant is that a trust was created to divide the property, and to commence at the time of the death of the testator, and that the shares could not vest until the division was made. That construction would render inalienable each share while the trust was being performed, and the entire income of the property would, therefore, accumulate until the division should be completed. Such a scheme would be manifestly illegal, and no such intention on the part of the testator is to be presumed.

It was held in Manice v. Manice (43 N. Y. 303) that when shares in real or personal property are disposed of by a will, and such shares are to be ascertained by a division, the interest of every legatee in the property passing under the will and to be divided, is a vested interest before the conversion or division, although it is not to take effect in actual enjoyment until the time appointed for the division arrives. We can find nothing in the present will that annexes futurity to the vesting in interest of any one of the nine shares into which Mr. Stewart Brown by his will directed his property to be divided. His intention that it should vest immediately is emphasized by the 3d and 4th clauses of the will. He provides for the creation of trusts of the shares of any child or distributee who might be under the age of twenty-one years at the time of his, the testator's, death, thus indicating that it was the intention that the interest should vest as of the time of his decease. A provision is also made for the support and maintenance, out of the share so held in trust, of the infant to whom such share belongs.

We think it is too clear for denial that all these interests vested at the time of Stewart Brown's death, and that the share of Helen Brown passed under her will to the plaintiff.

The plaintiff should have judgment upon the submission as asked for, with costs.

VAN BRUNT, P. J., O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Judgment ordered for plaintiff, with costs.

FIRST DEPARTMENT, MARCH TERM, 1898.

[Vol. 27.

CATHARINE J. CAVANAGH, Appellant, v. HUGH O'NEILL,
Respondent.

Negligence-failure of an employer to furnish a safe place — a saleswoman injured by the fall upon her of a dress form model — proof of similar falls of other models.

On the trial of an action brought against a shopkeeper by a sales woman, who, while in his employ and stationed in a space about two feet wide, between a counter and a showcase, six feet six inches high, where it was her duty to stand, was struck and injured by a dress form (lay figure) which fell from the top of the showcase, it appeared that the figure was not fixed to the showcase nor guarded by any railing; that it had a narrow base, from which a tin socket, to which it was usually attached, was wanting; that the rod running through it was bent, throwing it out of equilibrium when loaded, and causing it to shake easily, and that it might possibly be moved by the draft from a window, immediately behind it.

Held, that these facts warranted the inference that the defendant was negligent, and rendered a dismissal of the complaint erroneous.

In such a case, proof that other models had previously fallen under like circumstances from the same showcase, at the same place, is admissible as tending to show that such a model, whether defectively constructed or not, would be likely to fall.

APPEAL by the plaintiff, Catharine J. Cavanagh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of March, 1897, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.

The plaintiff, who was a salesgirl employed by the defendant in his store, sued to recover for personal injuries sustained through the alleged negligence of the defendant. On the 15th of December, 1892, the plaintiff was stationed at a counter which ran along in front of a showcase, distant two feet and two inches from it; and in that narrow space the plaintiff stood. The showcase was six feet six inches high, having a flat top three feet one and a half inches wide. Back of the showcase was a window, the bottom of which was a little higher from the floor than the top of the showcase. The window was open at the top. On top of the showcase behind the plaintiff, and in front of the open window, the defendant had caused to be placed a dress form, having a tripod with an iron rod running up from its center, on which was a bust for the exhibition

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1898.

of garments, having thereon a sack, the whole figure being about three feet high. The cord of the window shade hung down over the showcase and over or alongside of the figure. There was no rail or coaming on top of the showcase, or other means of preventing the figure, if it should tip over, from falling to the floor, and the figure was not fastened in any way in its position on the showThe figure was one of twenty which were put along on top of the showcase every morning by the packers employed by the defendant and taken down by them at night. The plaintiff had nothing to do with taking them down or placing them in position. It had been there from about half-past eight in the morning until about one o'clock, when it fell and struck the plaintiff on the head, causing the injuries for which she seeks to recover.

case.

There was testimony tending to show that, for some time prior thereto and at the time of the accident, the figure was out of repair; that the rod was bent and loose at the base, so that the figure with the garment upon it as it stood on the showcase was seen by other employees in the store to shake as if it were going to fall. One witness said that furniture was kept on the floor above, and when that was moved around it would cause this figure to shake; others said they had observed it shake while the window was open behind it, and one of the witnesses said that in the morning, before the accident, she had seen the figure shaking, and had felt a draft from that window. But precisely what caused it, after standing in the same condition from half-past eight, to fall at about one o'clock is not made to appear. It does appear that no one was interfering with the shade cord at the time.

The plaintiff, in the 3d paragraph of the complaint, alleges: "That on or about the 15th day of December, 1892, the defendant, in violation of his duty to this plaintiff, wrongfully and negligently placed, or permitted or directed a heavy figure or model, made of wood and iron, and defectively constructed, or which had become out of repair and unsafe and dangerous to be placed upon a shelf or showcase, which was also in a defective condition and in front of which this plaintiff was standing in the performance of her duties as saleswoman as aforesaid, in ignorance of such defective construction or want of repair or of the said danger, and that by reason of said APP. DIV.-VOL. XXVII. 7

FIRST DEPARTment, March TERM, 1898.

[Vol. 27 wrongful and negligent conduct of the defendant in so placing or permitting or directing said figure or model to be placed as aforesaid, it fell upon this plaintiff, striking upon her head and felling her to the floor of said store, and causing great injury to her head and brain and nervous system."

The court refused to admit proof offered that other models, irrespective of their construction or condition of repair, had previously fallen under like circumstances from the same showcase at the same place; and at the close of the plaintiff's case the complaint was dismissed, and from the judgment thereafter entered the plaintiff appeals.

Abel Crook, for the appellant.

Herbert C. Smyth, for the respondent.

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

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1898.

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 tending 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,