Pearson v. Ehrich

133 N.Y.S. 273 | N.Y. App. Div. | 1912

Scott, J.:

Plaintiff appeals from a judgment entered upon a dismissal of fee complaint.

The plaintiff was walking along Sixth avenue in fee city of Hew York when a broken piece of glass fell from one of fee windows of a large shop owned and occupied by defendant and injured her. She proved these facts, which were not controverted. This was sufficient to establish, prima facie, defendant’s negligence and to call upon him to explain the circumstances or otherwise establish .his freedom from liability. (Volkmar v. Manhattan R. Co., 134 N. Y. 418.) The defendant took up this burden and showed that he had employed ■ an independent contractor to putty his windows, and that one of this contractor’s workmen was near fee window when it broke, from which, it was sought to draw fee inference feat it was this workman who broke the window, although this was not expressly proven. Plaintiff then undertook to show that the breaking of the window did not result from the negligence of fee workman, but from fee defective-condition of fee window itself. This she was not permitted to do, and her complaint was dismissed. This was error. ' Even Without .the excluded evidence there was an issue of fact for the jury.' i The plaintiff had proved defendant’s negligence prima facie. He had then offered evidence from which, as he claimed, it appeared that the negligence was not his, hut that of another. It was not for the court to say, as matter of law, in view of the nature of the proof, that defendant had overcome the presumption arising from plaintiff’s evidence. Furtherm.ore,' it was error to exclude the evidence offered by plaintiff in rebuttal. When the rule of res ipsa loquitur applies, as it did in this case, the fact of the accident, and the attendant circumstances, without further proof of the cause, warrant the inference of negligence, and the plaintiff may rest thereon. If the defendant offers evidence tending to dispel this presumption, it is. the right of the plaintiff, in rebuttal, to overcome the attempted explanation by additional evidence. (Uggla v. Brokaw, 117 App. Div. 586; Wiley v. Bondy, 23 Misc. Rep. 658; Claflin v. Meyer, 75 N. Y. 260.)

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.