150 N.Y.S. 986 | N.Y. App. Term. | 1915
Lead Opinion
The plaintiff has recovered a judgment for damages caused to the stoop of his house by an automobile truck owned by the defendant. The plaintiff produced several witnesses who testified that the defendant’s truck, loaded with beer kegs, came down the street, which is a somewhat steep incline, and ran over the sidewalk into plaintiff’s stoop. No chauffeur was upon the truck at the time of the accident.
The “rule of res ipsa loquitur cannot be applied where no negligence on the part of the defendant is shown by direct evidence, and it is apparent that there may have been other causes than the defendant’s negligence which*988 led to the accident.” Keenan v. McAdams & Cartwright Elevator Co., 129 App. Div. 117, 113 N. Y. Supp. 343.
It follows that unless the plaintiff can fill out his proof by evidence that, even though the- automobile was left as the defendant claims, it still could have gone down hill of its own weight, or by evidence that actually nobody interfered with the truck while standing in the position in which it was left, there can be no fair inference that the accident occurred through the defendant’s negligence. In reaching this conclusion, I have not overlooked the fact that there is some evidence that the auto truck started to slide down hill a second time after the accident; but inasmuch as there is no evidence that its position at that time was analogous to its original position, or that the brakes were then applied, this evidence is quite immaterial.
Judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
DEEANY, J., concurs.
Dissenting Opinion
This is an appeal from a judgment of the Municipal Court entered in favor of the plaintiff after trial before the court and a jury. The defendant’s auto truck was left standing on the roadway by defendant’s driver. The truck, for some unexplained reason, started and ran upon the sidewalk and into a stoop of the plaintiff’s house and damaged it. The recovery is for such damages; i. e., the cost to the plaintiff of making the repairs.
The action was brought, tried, defended, and is now argued, solely - upon the theory of defendant’s negligence. While there is doubt as to the right of the plaintiff to maintain the action upon the theory of negligence, I think he would have been entitled to recover, had he laid his action in trespass. After an examination of the record, I am of the opinion that the evidence was ample to sustain the trespass, and a recovery would have been sustained as for a trespass, without proof of actual negligence of the defendant. Hay v. Cohoes Co., 2 N. Y. 159—162, 51 Am. Dec. 279; St. Peter v. Denison, 58 N. Y. 417, 17 Am. Rep. 258; Turner v. Degnon Cont. Co., 99 App. Div. 135, 90 N. Y. Supp. 948; McCahill v. Parker Co., 49 Misc. Rep. 258, 97 N. Y. Supp. 398; 38 Cyc. 995, B.
Substantial justice has been done, and the judgment should be affirmed.