Allen v. United Traction Co.

73 N.Y.S. 737 | N.Y. App. Div. | 1901

Smith, J.:

Had this extinguisher been securely fastened plaintiff would not have suffered injury. Its fall must have been due either to negligent fastening originally or- to a negligent maintenance óf a fastening originally sound. The fastening was beyond the-reach of ordinary interference by those going to and from the car. ■ That an outsider should have interfered and rendered insecure this fastening is most improbable. Without deciding. then the degree of care required of the defendant in securing this extinguisher, we are clearly of the opinion that the circumstances surrounding the happening of the accident point to some negligence on the part of the defendant which called for its explanation. The doctrine of res ipsa lóquitv/r has received recent consideration from the courts and the doctrine has been given a liberal construction. In Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297) the rule is thus stated: “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” In Griffen v. Manice (166 N. Y. 188) the cases are examined, and the rule above stated is approved. The opinion in part reads: “ The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in ■"the,-defendant,-it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.” These views have been recently reiterated in this department in the case of Fink v. Slade (66 App. Div. 105), and also find support in analogous cases in this and other States. In White v. Boston & Albany R. R. Co. (144 Mass. 404) it is held that there is a presumption of negligence where a passenger is injured by the falling of a lamp shade. In Och v. M. K. & T. Ry. Co. (130 Mo. 27) presumption of negligence was held to arise where the injury was caused by the falling of a ventilator window. In Horn v. New Jersey Steamboat Co. (23 App. Div. 302) it was held that the falling of an upper berth from unexplained cause was grima facie evidence of negligence on the part of the steamboat company. (See, also, Gerlach v. Edelmeyer, 15 J. & S. 292; affd., 88 N. Y. 645; Wolf v. American Tract Society, 164 id. 30; Stewart v. Ferguson, 52 App. Div. 317, 320.) Within these authorities we think the learned court below was in error in dismissing plaintiffs complaint.

Kellogg and Edwards, JJ., concurred; Parker, P. J., and Chase, J., in result.

Judgment reversed and a new trial granted, with costs to appellant to abide event.