Casey v. Wynatol Realty & Hotel Co.

PENDLETON, J. The action is for damages alleged to have been caused by defendant’s negligence. Plaintiff, a cleaner or scrubwoman employed by defendant, an hotel keeper, was injured by cutting herself on a broken glass while endeavoring to get through a window onto the fire escape, and was also burned. [1] It appears that gasoline was being used for some cleaning purpose by a housekeeper, or houseman, employed by defendant. An explosion occurred, setting fire to the premises, as a result of which plaintiff, being frightened, endeavored to get on the fire escape, and in so doing received the injuries complained of. There was no evidence as to the cause of the explosion, or what occasioned it, or as to any negligence in using the gasoline, or that its use for the purpose was dangerous or unusual. The burden was on plaintiff to establish defendant’s negligence. There was no evidence of the service of any notice under the Employers’ Liability Act (Consol. Laws, c. 31, §§ 200-204). [2, 3] There is no evidence of negligence, and the doctrine of res ipsa loquitur can have no application in an action by an employé, where, if the accident was due to negligence, it may as well have been that of a fellow employé as of the employer. Wolf v. American Tract Society, 164 N. Y. 30, 58 N. E. 31, 51 L. R. A. 241; Scott v. Nauss Brothers Co., 141 App. Div. 255, 126 N. Y. Supp. 17. The meaning of the maxim is that the thing is evidence of the negligence of defendant. Cunningham v. Dady, 191 N. Y. 152, 83 N. E. 689; Wetsell v. Reilly, 159 App. Div. 688, at page 691, 145 N Y. Supp. 167. The mere fact of an explosion on premises does not make out a prima facie case of negligence against the owner. Wetsell v Reilly, 159 App. Div. 688, 145 N. Y. Supp. 167. Judgment reversed, with costs, and complaint dismissed, with costs. All concur.