13 N.E.2d 772 | NY | 1938
On April 2, 1930, the plaintiff, Regina N. Bressler, was a passenger upon the Brighton Beach line of the defendant's subway system. During the running of the train, and while she was sitting quietly in her seat, a pane of glass broke or shattered, a piece piercing her eye, destroying her sight. For a violation of that duty of care and caution which the railroad owed to her as a passenger, she brought this suit against it for negligence and has recovered a verdict of $15,000.
These facts in themselves made out a prima facie case of negligence, which means that in the absence of explanation showing freedom from negligence the law would hold the railroad company liable. This is known as the law of res ipsa loquitur,
and was stated by us in Bressler v. New York Rapid TransitCorp. (
The defense undertook to meet the presumption arising from the happening of the accident itself, and offered testimony that the glass was broken by boys on the outside throwing stones against it. The trial judge properly left the question of fact to the jury: Had the presumption of want of care and negligence arising from *202 such an accident to a passenger been overcome by the explanation offered by the defendant? If the explanation were true there was no liability. If the jury did not believe it, the verdict would be for the plaintiff. The jury found for the plaintiff, as above stated.
The plaintiff, in her testimony, did not attempt to show how the accident was caused. The fact that the glass was broken did not show the cause of breaking, nor did she claim on this trial that the broken glass was due to the negligence of the defendant in not discovering it before the train left the yard. All she knows, and all she attempted to testify to, was that while a passenger in the car the glass shattered and she was blinded. This called upon the company to furnish the explanation, which it attempted to do. The plaintiff on cross-examination simply stated the condition of the glass. This had nothing whatever to do with the cause of its flying in her face. The jury did not believe that this was caused by a stone being thrown against it.
The Appellate Division has reversed the plaintiff's judgment and dismissed the complaint, mistaking, we think, the effect of our former decision in
For these reasons the judgment of the Appellate Division must be reversed, and that of the Trial Term reinstated, with costs. What is here stated applies also to the recovery of $1,500 in behalf of the husband.
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
LEHMAN, O'BRIEN, LOUGHRAN, FINCH and RIPPEY, JJ., concur; HUBBS, J., taking no part.
Judgment accordingly.