Morris v. Zimmerman

Miller, J.: 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 [116] time to charge him with notice thereof. The landlord does not have the opportunity, and cannot be 'expected, to exercise that constant watchfulness which an innkeeper may exercise and which, I' .think, reasonable care requires him to exercise for the protection of his guests. ' 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 [117] and the burden is cast upon the party having it within his power to explain the accident. 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.