286 A.D. 265 | N.Y. App. Div. | 1955
The appeal is by defendant from a judgment entered in a personal injury action after a jury trial in favor of Joan Mercatante and in favor of her father for medical expenses against the City of New York.
Joan Mercatante was employed as a clerk in Gouverneur Hospital by the department of hospitals of the City of New York. In the course of her duties at the hospital, while walking along
The complaint and the bill of particulars set forth specific acts of negligence by defendant relating to the unsafe manner in which it had attached the fire extinguisher to the wall and for its failure to provide a bracket or shelf upon which it could rest. It was also claimed that defendant had failed to supply plaintiff with a safe place to work; that the screws or other devices by which the fire extinguisher was hung on the wall had been worn, loosened and weakened, and consequently were not strong enough to sustain the weight of the fire extinguisher ; and that defendant was negligent in failing to inspect the mechanism within a reasonable time prior to the occurrence of the accident.
Plaintiff contended that the doctrine of res ipsa loquitur applied. Defendant urged on the other hand that such rule had no application because the city was not in exclusive control of the extinguisher or of the place where it had been fastened to the wall.
Upon the trial, no evidence was adduced which would support any of the specified acts of negligence. There was no proof of any defect in the extinguisher or in its supporting hook, nor was there any attempt to prove actual or constructive notice of a defect, if it had existed.
We think the doctrine of res ipsa loquitur was erroneously invoked. It is well-settled law that such doctrine is applicable
Plaintiff did not establish that defendant’s control and possession of the fire extinguisher was exclusive. It was hung in a public hallway accessible to employees, such as doctors and nurses and also to patients and visitors. It was properly contended that it could have been disturbed by patients walking past, by the visiting public, and by other people who were not employees or agents of the City of New York.
Plaintiff did not see the extinguisher drop from the wall. It struck the top of her head as she was rising from a stooped position. The claim of a fall of the extinguisher was therefore established by inference alone. However, the other inference, namely, that she struck the bottom of the extinguisher with the top of her head and dislodged it as she rose from the floor might be drawn with equal certainty. Though the testimony of plaintiff, an interested witness, as to how the accident occurred was uncontradicted, where, as here, it was impossible for the City to contradict it, such testimony was not conclusive. The rule is well settled that the credibility of interested witnesses, even though their testimony be uncontradicted, when contradiction is impossible and its truthfulness or accuracy is open to a reasonable doubt, is exclusively for the jury. (Piwowarski v. Cornwell, 273 N. Y. 226, 229; Christie v. B. F. Vineburg, Inc., 259 App. Div. 342, 346; Goes v. Gifford Sales & Service, 265 App. Div. 796, 798, 799, affd. 291 N. Y. 744.)
We think that the trial court inadvertently assumed that this accident was caused because the fire extinguisher fell from the wall without the intervention of some outside force. At no point in the court’s charge was there any suggestion that the accident may have occurred because, as the City claimed, plaintiff while rising struck it with her head and knocked it off the wall.
Though no exceptions were taken by the City to the court’s charge, in the circumstances of this case, none were necessary. At the close of plaintiff’s case and at the conclusion of the entire case, the City had moved to dismiss the complaint upon the ground that plaintiff’s reliance upon the theory of res ipsa loquitur was erroneous, and that without the presumption of negligence thereby erroneously created, plaintiff had failed to-establish negligence on the part of the City. These motions were denied and exceptions were taken thereto. Thus the question was squarely raised. (Elenkrieg v. Siebrecht, 238 N. Y. 254, 263; Thoens v. Kennedy Realty Corp., 279 App. Div. 216, 223, affd. 304 N. Y. 753.) In Pioneer Credit Corp. v. San Miguel (274 App. Div. 184, 191, Van Voorhis, J.) this court said:
“ The defendants’ counsel appears not to have excepted to the instruction to the jury that under the terms of the contract there was an absolute obligation on Mexasturca to pay the import duties, but it has been held (Newborn v. Peart, 219 App. Div. 249) that the Appellate Division may review such a ruling without an exception, as a question of fact, if there has not been a fair trial. In the case cited, the court said: ‘ The case was submitted to the jury upon an erroneous theory and there should be a reversal in order that the real issue may be decided by a jury. (Coble v. Potter, 155 App. Div. 716; Levine v. Rosenschein, 134 id. 157.) ’ (P. 251.) (See, also, Alden v. Knights of Maccabees, 178 N. Y. 535, 541.)"
In its charge, the court in effect told the jury that the falling of the extinguisher would be some evidence of’negligence and would require some explanation by the City. The jury was thus deprived of passing on the fact issue as to whether the extin
Upon another trial plaintiff may be able to adduce evidence sufficient to establish that this accident occurred through some negligent act on the part of defendant and through no fault on the part of the infant plaintiff. Upon this record, however, we find no such proof.
The judgment should accordingly be reversed and a new trial ordered, with costs to appellant to abide the event.
Peck, P. J., Callahan, Breitel and Botein, JJ., concur.
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. [See post, p. 964.]