122 N.Y.S. 900 | N.Y. App. Div. | 1910
Lead Opinion
The plaintiff was a guest over night at the defendants’ hotel. While in the act of dressing in the morning he was struck • on the head by a large piece of plaster which fell from the ceiling, inflicting injuries for which this action was brought. He testified that when he awoke in the morning, and before the ceiling fell, he heard “ chiselling or knocking with hammers about the building.” There was no direct evidence to explain the accident. The complaint was dismissed at the close of the plaintiff’s case.
I shall assume that the slight evidence tending to show that repairs were being made to the building was insufficient to connect that work with the fall of the plaster, but still I think there is sufficient evidence to call upon the defendants for an- explanation. The defendants assert that the case is controlled by the landlord and tenant cases, of which class the cases of injuries from defective stairs and hallways are the familiar examples. It may be assumed-that an innkeeper, like a landlord, is required to exercise only reasonable care, but the requirements of reasonable care in the two cases are not the same. In the case of leased premises, with a part retained by the landlord for the use of several tenants, a defective condition might arise or an accident happen from a variety of causes over which the landlord Would have no control, which he would have no reason to anticipate, and for which he could not be held responsible unless the defective condition existed for a sufficient
While neither side has found a case precisely like this, the principles controlling were settled by what is noW the leading case on the subject. (Griffen v. Manice, 166 N. Y. 188.) It was held in that case that the application of the rule res ipsa loquitur depends “ on the circumstances and character of the occurrence, and not oh the relation between the parties, except indirectly so far as that relation' defines the measure of duty imposed on the defendant.” The measure of duty in that case was held to be reasonable care and yet the maxim Was applied because the court thought that ordinarily such an accident as occurred in that case would not have happened had reasonable care been exercised. Judge Cullen pointed out in that case that-the application .of the maxim depended upon two rules of evidence : (a) That a fact may be proved by circumstantial as well as by direct evidence; (b)' that where one'party has it in his power to produce evidence which the other party is unable to produce, but slight evidence is required to shift on the party possessing the knowledge the burden of an explanation.Both of these rules are applicable to this case.':
Plaster does not ordinarily fall from properly constructed ceilings «less the*^lTru^is out of irepair oTthére is same-adequate external cause. If there was an external cause in this case, the fair inference is that the defendants were responsible for it, and they have it in their power to explain it. If the accident wasdue(to the defective condition of'the ceiling, the defendants, in the exercise of that watchfulness which an innkeeper owes to. his guests, should have discovered it. The plaintiff only knows that he was hurt by a fall of the plaster. I can see no distinction between the fall of plaster upon a guest in a hptel and the fall of a wall upon a pedestrian in the street. (See Mullen v. St. John, 57 N. Y. 567.) Both occurrences point -to negligence, to a defective condition which the defendants hi the exercise of the care which they owed to. tli# plaintiff should have discovered or to some .external canse Within the defendants’ control. Under such circumstances, the rule applies
The judgment should be reversed and a new trial granted, costs to abide the event.
Laughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.
Dissenting Opinion
(dissenting):
The complaint in this action alleges that the defendants were keepers and proprietors of a certain hotel situated at the corner of Canal street and the Bowery in the city of New York; that on the 18th of March, 1907, the plaintiff called at the defendants’ hotel, .applied for a room and was thereupon received as a guest.of the hotel by the defendants and assigned to a room therein; that on the morning of the following day while plaintiff was occupying the said -room a portion of the ceiling or plaster in the room fell upon the plaintiff; that the fall of the ceiling or plaster was caused and brought about wholly and solely through the carelessness of the defendants without any fault or want of care on the part of the plaintiff; and the action is brought to recover for the damages caused thereby. The cause of action being thus based solely upon the negligence of the defendants, to entitle the plaintiff- to recover he must prove such negligence. The evidence adduced by the plaintiff was confined to the fact that plaintiff was received at the hotel, assigned a room, and that while in the room he was injured by the fall of the plaster from the ceiling. There was no evidence that the plaster was out of order excé;¡|t what could be inferred from the fact that it fell, and'it seems''to be conceded that the plaintiff cannot recover -unless what has been called a rule of evidence should.apply by which the jury were authorized to find negligence from the happening of the accident itself; or, in other words, that the maxim res ipsa loquitur was applicable to an occurrence of this character.
It is now firmly established that what has been called the maxim res ipsa loquitur is a rule of evidence and applies to such cases as from the nature of the accident or the connection of the party sought to be held liable the inference of negligence is justified by the happening of the occurrence which caused the injury. It has been applied in the case of a person injured upon a highway by some
There is a further question presented as to whether the relation of innkeeper and gnest placed upon- the innkeeper any greater burden than that imposed upon all 'persons who rent out a portion of' a building to others. It is, I think, settled that where a landlord rents an apartment to a tenant he is not liable for the fall of a ceiling in the apartment rented. (Fushes v. Ginsberg, 99 App. Div. 417; affd., 188 N. Y. 630.) Nor would a landlord be liable to a tenant for .personal injuries caused by a failure to keep the stairs and hallways in a safe ' condition unless it was proved-that the' defendant knew of the unsafe condition or that -it had existed for .such a length of -time that the defendant should have known of it. and repaired it. (Idel v. Mitchell, 158 N. Y. 134.) I do. not .understand that in this respect the obligation of an innkeeper to a guest.is different from that assumed by an owner of a house rented to various tenants, and who reserves-a portion of the-house for common use, in which case the negligence of the landlord must be established, by affirmative evidence. .And that this is the extent of the obligation of the innkeeper is sustained by Sandys v. Florence. (47 L. J. [N. S.] C. P. 598). It was there said that it was the duty of the innkeeper to take reasonable care of the persons of his guests, so that they should not be injured by anything happening to them ‘ through his negligence while they are his guests, thus establishing that the cause of action is based on negligence as the complaint ' alleged in this case and which, I think, the evidence failed- to prove.
I think, therefore, the judgment was right and should be affirmed.
Scott, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.