127 N.Y.S. 561 | N.Y. App. Term. | 1911
Lead Opinion
These cases were tried together and, except as to the injuries sustained -by the respective plaintiffs, all the evidence applies to the case of each.
The defendant, the owner of a loft building, had operated an elevator therein for conveying passengers and freight to the premises, occupied by the several tenants; and, on the day of the occurrence alleged to have caused the injuries complained of, the -plaintiffs were all passengers in the car of the elevator. The car had risen to the fifth floor, when suddenly it began to descend with increasing velocity until it stopped, as the plaintiffs testify, between the lower floors; and the car seemingly was wedged in its frame -and tilted over to one side.
There is no testimony in the plaintiffs’ case to show the cause of the occurrence, and undoubtedly the plaintiffs relied on the doctrine of res ipsa loquitur to make out a prima facie case. However discordant may -seem the opinions of courts as to the conditions which may. justify the invoking of this doctrine, there can be no question that all the benefit of it is lost as soon as the defendant makes a satisfactory explanation which will overcome the inference of negligence created by the mere happening of the accident.
In the case at bar, the defendant showed by a mechanician in charge of -both the building and the elevator his daily oh
The only testimony produced with this purpose in view was that of two of the plaintiffs, one .of whom testified that the elevator “ stopped of itself many times before the accident” and another who testified, explaining his meaning, “ when we were to go out from the elevator the elevator used to go down and then he (evidently the operator) used to hold the rope in the guide, whatever you.call it,"so that the elevator shouldn’t go down and he says * step lively.’ ” It needs no discussion that this testimony is not sufficient to prove the allegations of negligence on the part of defendant.
The complaint should have, therefore, been dismissed.
Apart from these reasons for disagreement with the ruling of the learned court below, there is in the case another ruling which worked substantial prejudice to defendant. Conceding, if one will, that the plaintiffs’ case raised an inference of defendant’s negligence, defendant had a right not only to show its due care in the matter but if it chose the cause of the accident. For -aught any one knows, extraneous interference had produced it, thus conclusively settling 'the question; and when the defendant asked the question of the engineer in charge of the building: “ Did you make any examination of the elevator and its appliances after the accident :— immediately after .the accident ? ” the question should have been allowed. The exclusion of the question Which may have been designed to disclose the cause of the irregular action of the elevator, the defendant excepting, was error. Starer v. Stern, 100 App. Div. 393.
Judgments reversed and new trial ordered, with costs to appellant to abide the event.
Concurrence Opinion
. I have concurred on the last ground only and cannot concur on the first ground for the following reasons:
The measure of care required by the owner of a building in regard to persons using the elevators upon the owner’s implied invitation is “ reasonable care in the character of the appliance they provide and in its maintenance and operation.” Griffen v. Manice, 166 N. Y. 188, 199. The phrase " res ipsa loquitur ” is “ merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as to the cause of the accident.” Id. 196.
The question presented to us is, as stated by Mr. Justice Delany, whether the explanation provided by the defendant is sufficient to overcome the inference of negligence created by the circumstances attendant upon the accident; that is, has the defendant shown that it has used due care in providing, maintaining and operating the elevator? The defendant gave little evidence as to the appliance provided or as to its operation. Conceding, however, that the evidence was sufficient to show that the elevator was a proper appliance and was operated without negligence, it still must rebut the inference that it arose from a defect that should have been discovered by proper inspection. In other words, if the doctrine of res ipsa loquitur has been properly applied, it was fairly inferable that the accident must have occurred from one of three causes, and it is quite immaterial which of these causes actually produced the accident; and, though we concede that the defendant’s testimony shows that two of the
■Since an owner of a building cannot delegate his duty of inspection of an elevator to an expert in that business, the proof that - an expert has examined it in nowise 'rebuts the presumption of negligence raised by the circumstances attendant on the accident. To rebut this presumption he must show either the. actual cause of the accident, so that the trial justice or jury can determine whether or not such cause could be discovered by proper inspection, or he must show that the inspection made by the expert was so careful that no defect discoverable by inspection could be overlooked.
The appellant relies upon the case of Young v. Mason Stable Co., 193 N. Y. 188, where evidence of an examination by an expert was held sufficient to rebut a possible pre
I believe for these reasons that the judgments should be reversed only on the ground that a question was excluded which, if 'answered, might have shown the actual cause of the accident.
Judgments reversed.
Concurrence Opinion
I concur with Mr. Justice Delany. FTo objection was made to the testimony of the witnesses who examined the elevator before the accident. I think that testimony shows with reasonable certainty that the inspection was so careful that no defect discoverable by competent inspection was overlooked. If proper objection had been made, undoubtedly some of the testimony relating to inspection would have been excluded. But the testimony is material, and no objection was made -to its competency.
