190 N.E. 641 | NY | 1934
Plaintiff was working, not for defendant, but for a stevedoring contractor in loading drums of oil on defendant's steamship. The stevedore's men had been working for three days when an accident happened. A part of the rigging used in loading the drums fell and struck plaintiff. No negligence on the part of defendant was shown. The hoist rigging was in the custody and control of the stevedoring company. The judge charged the jury: "the happening of the accident creates a presumption that the defendant did not have a safe appliance." In other words, the case was presented as being governed by the rule of res ipsa loquitur.
The first item of proof necessary to bring this rule into action is that the thing is shown to be under the management of the defendant. (Breen v. N.Y.C. H.R.R.R. Co.,
The judgments should be modified by granting a new trial, with costs to appellant to abide the event.
CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment accordingly.