130 N.Y.S. 688 | N.Y. App. Div. | 1911
To sustain this judgment the plaintiff invokes necessarily the rule of res ipsa loquitur. The plaintiff when bowling in a public bowling alley slipped and ran a splinter into his foot. The obligation of the defendants was that of reasonable care and prudence lest their premises might injure the plaintiff when in a reasonable contemplated use thereof. (Larkin v. O’Neill, 119 N. Y. 221.) The rule in question arises when, the occurrence as proved points necessarily to negligence of some kind on the part of the defendant. (Robinson v. Consolidated Gas Co., 194 N. Y. 37, 41; Griffen v. Manice, 166 id. 188.). The mere fact that the occurrence was in the premises of the defendants does not raise any presumption of wrongdoing. (Curran v. Warren Chemical and Manufacturing Co., 36 N. Y. 153.) The splinter was but a small slender bit of wood. There was no proof of its existence for any period prior to the
I advise that the judgment be reversed and that a new trial be ordered, costs to abide the event.
Hirschberg, Burr, Woodward and Rich, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.