9 A.D.2d 691 | N.Y. App. Div. | 1959
In an action to recover damages for injuries to property, the appeal is from an order denying a motion for summary judgment striking out the answer. Order reversed, with $10 costs and disbursements, motion granted, and matter remitted to the Special Term for further proceedings in accordance with the views expressed herein. In support of the motion it was shown by the affidavit of an apparently disinterested eyewitness, and by the deposition of respondent’s employee taken in an examination of respondent before trial that, in the interior of premises occupied by appellant, a heavy and large piece of machinery, a press brake, fell from respondent’s truck onto another machine, a press owned by appellant, and that the brake was in the exclusive possession and control of respondent’s employees in the course of their work of removing it from the said premises for delivery to another location. The doctrine of res ipso loquitur is applicable. No attempt was made by respondent in its opposing affidavit to show the existence of evidence militating against the presumption of negligence. In our opinion, the prima facie proof is so convincing that the inference of negligence arising therefrom, in the absence of rebuttal or other evidence, is inescapable (cf. George Foltis, Ino., v. City of New York, 287 N. Y. 108). Wenzel, Acting P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ., concur.
