Cohen v. Farmers' Loan & Trust Co.

Delany, J. These cases were tried together and, except as to the injuries sustained -by the respective plaintiffs, all the evidence applies to the case of each. The defendant, the owner of a loft building, had operated an elevator therein for conveying passengers and freight to the premises, occupied by the several tenants; and, on the day of the occurrence alleged to have caused the injuries complained of, the -plaintiffs were all passengers in the car of the elevator. The car had risen to the fifth floor, when suddenly it began to descend with increasing velocity until it stopped, as the plaintiffs testify, between the lower floors; and the car seemingly was wedged in its frame -and tilted over to one side. There is no testimony in the plaintiffs’ case to show the cause of the occurrence, and undoubtedly the plaintiffs relied on the doctrine of res ipsa loquitur to make out a prima facie case. However discordant may -seem the opinions of courts as to the conditions which may. justify the invoking of this doctrine, there can be no question that all the benefit of it is lost as soon as the defendant makes a satisfactory explanation which will overcome the inference of negligence created by the mere happening of the accident. In the case at bar, the defendant showed by a mechanician in charge of -both the building and the elevator his daily oh [550] servation and inspection of the car and its machinery and supplemented this testimony by 'that of two experts who said that at reasonable intervals.shown they had made inspections with a view to certifying to the efficiency and structural soundness of the elevator. All this testimony supported the position that the structure and its appliances were suitable for the purpose and not defective. Since the defendant was charged with negligence, it seems to me that this testimony overcomes the inference and requires the plaintiff to adduce evidence sufficient to sustain the charge. The only testimony produced with this purpose in view was that of two of the plaintiffs, one .of whom testified that the elevator “ stopped of itself many times before the accident” and another who testified, explaining his meaning, “ when we were to go out from the elevator the elevator used to go down and then he (evidently the operator) used to hold the rope in the guide, whatever you.call it,"so that the elevator shouldn’t go down and he says * step lively.’ ” It needs no discussion that this testimony is not sufficient to prove the allegations of negligence on the part of defendant. The complaint should have, therefore, been dismissed. Apart from these reasons for disagreement with the ruling of the learned court below, there is in the case another ruling which worked substantial prejudice to defendant. Conceding, if one will, that the plaintiffs’ case raised an inference of defendant’s negligence, defendant had a right not only to show its due care in the matter but if it chose the cause of the accident. For -aught any one knows, extraneous interference had produced it, thus conclusively settling 'the question; and when the defendant asked the question of the engineer in charge of the building: “ Did you make any examination of the elevator and its appliances after the accident :— immediately after .the accident ? ” the question should have been allowed. The exclusion of the question Which may have been designed to disclose the cause of the irregular action of the elevator, the defendant excepting, was error. Starer v. Stern, 100 App. Div. 393. Judgments reversed and new trial ordered, with costs to appellant to abide the event.