Cunningham v. Lence Lanes, Inc.

Taylor, J. Defendant appeals in a personal injury action from a judgment of the Supreme Court entered upon a jury verdict at Trial Term and from an order denying its post-trial motion to set aside the verdict. In the evening of November 27, 1962 plaintiff, a business invitee of defendant, was injured while leaving its bowling establishment through a glass-paneled dooi. His testimony was that as he approached the exit he grasped the handle of the door with his left hand, pushed it outward for a distance of about two feet from which point it swung backward, contemporaneously with which movement the plate glass of the door shattered and fell from its frame striking him on the [239] leg and causing tbe injuries for wbicb be bas a recovery. Tbe complaint alleged specific acts of negligence in tbe construction, maintenance and .supervision of tbe instrumentality wbicb was said to bave caused tbe accident and at tbe trial plaintiff introduced evidence by former employees of tbe defendant in an attempt to prove sucb acts. Tbis proof was, in our opinion, not only insufficient for tbe purpose for wbicb it was offered but effectively deprived tbe plaintiff of tbe benefit of tbe presumption under tbe rule of res ipsa loquitur. Hence, tbe introduction of that doctrine into tbe case by tbe trial court was prejudicial error. (Fischer v. Johnson & Sons, 20 Misc 2d 891 and cases cited therein; Whitcher v. Board of Educ., 233 App. Div. 184; Whitcher v. Board of Educ., 236 App. Div. 293; Bressler v. New York R. T. Corp., 270 N. Y. 409; Bressler v. New York R. T. Corp., 277 N. Y. 200.) Tbe judgment should be reversed, on tbe law and tbe facts, tbe motion granted and a new trial ordered. Gibson, P. J., Herlihy, Reynolds and Atjlisi, JJ., concur. Judgment reversed, on tbe law and tbe facts, motion granted and a new trial ordered, with costs to abide tbe event.