Carl Schurz Petrasch, for appellant.
Sidney J. Cowen, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
The defendant Bloomingdale appeals from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The plaintiff was a steam fitter in the employ of one Frank Dobson, who was a subcontractor under the McAdams & Cartwright Elevator Company. The latter firm held a contract with the defendant Bloomingdale to make certain alterations in the elevators in the large department store belonging to the latter. The precise nature of these alterations is not disclosed by the evidence and is not important. It appears that it involved or required certain changes in the steam pipes in the basement of appellant's building. The pipes upon which plaintiff was at work at the time of the accident were directly over some iron rails upon which ran, while the elevator was in operation, what is known as a " traveling [113 N.Y.S. 344] sheave." The rails were perforated with holes about six inches in diameter, into one of which plaintiff had put his foot while working at the pipes above. The elevator had remained quiescent for something over an hour while plaintiff worked; but after that time it was started by some one, the traveling sheave ran along the rails, and injured plaintiff's foot seriously. There was no evidence how or by whom the elevator was started. There were present in the building the appellant's employes, engaged in running the numerous elevators, and also the employes of the McAdams & Cartwright Elevator Company, who were engaged about the alterations to the elevators. Any of these might have started the elevator. There is no claim that the elevator or its machinery were defective or kept in improper condition.
The complaint undertook to state the supposed ground of appellant's liability with great particularity, charging it to consist in the negligent manner in which the machinery had been stopped and kept inactive, which, as seems to be claimed, was of such a nature that, after remaining stationary for 80 minutes, the elevator suddenly started itself up. No attempt was made to prove the negligence thus alleged, and although the learned justice below, in a memorandum denying the motion for a new trial, states that the defendant Bloomingdale expressly waived any objection on that score, the printed record, by which alone we must be guided, does not disclose any waiver of the objection, express or otherwise, but, on the contrary, shows that it was urged as a reason for dismissing the complaint, both at the close of the plaintiff's case and at the close of the whole case. The objection was, as the case was presented, a perfectly sound one, and should have prevailed. As has been said, the evidence did not show how or by whom the elevator was started, and did show that there were present in the building, working in and around the elevators, employes of an independent contractor, any one of whom, as it seems, might have set the machinery in motion. Under these circumstances the court applied the doctrine of " res ipsa loquitur," charging the jury that the facts and circumstances shown by the evidence would justify them in finding, in the absence of satisfactory explanation on the part of defendant, that the defendant had not been duly careful to safeguard the person of the plaintiff while at his work. This is an extension of the doctrine invoked far beyond the proper limits to such doctrine. It was said by the Court of Appeals in Duhme v. Hamburg Packet Co., 184 N. Y., at page 409, 77 N. E., at page 387 (112 Am.St.Rep. 615), speaking of the doctrine of " res ipsa loquitur" :
" Its operation, where the relations are not of a contractual character, can only be, as in Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925,52 L.R.A. 922,82 Am.St.Rep. 630, when there are actually shown such facts and circumstances in the nature of the defendant's undertaking, and of the accident itself from which the jury are able, if not compelled, to draw the inference of negligence. It was not intended that it should exempt the plaintiff from the burden of proving affirmatively negligence, or circumstances making negligence a legitimate, if not irresistible, inference."
Many other cases might be cited to the same effect, all holding that the rule of " res ipsa loquitur" cannot be applied where no negligence on the part of the defendant is shown by direct evidence, and it is [113 N.Y.S. 345] apparent that there may have been other causes than the defendant's negligence which led to the accident. In line with this erroneous application of the doctrine referred to was the refusal of the court to charge, as requested by appellant:
" That if, on all the evidence, the exact cause of the accident is not ascertainable by the jury, except as a matter of conjecture and surmise, the defendant is entitled to a verdict."
As has been already said, the evidence left it quite possible that the elevator might have been started by some one other than the appellant or one of his employes, and the learned court recognized this fact, by saying to the jury, after he had announced the intention of applying the doctrine of " res ipsa loquitur" :
" Accordingly I send the case to you, although the plaintiff has failed to show what caused the machinery to move--whether it was the negligence of some outsider, or what not, or some inherent defect in the machinery."
Thus the jury were permitted to surmise, merely from the fact that the machinery was started, and notwithstanding it might have been started by some outsider, either that it was inherently defective (of which there was no evidence), or that it was started by an employe of appellant. This was to relieve the plaintiff from the burden of proving his case, and to permit the jury to substitute conjecture for proof. No rule is better settled than that enunciated by Judge Martin in Cassidy v. Uhlmann, 170 N. Y., at page 534, 63 N.E. 563, and supported by a host of authorities that:
" A jury will not be permitted to base a verdict upon surmise, upon mere food for speculation, or to enter into the realm of conjecture to find a verdict."
Since the evidence showed that other causes than the appellant's negligence might have led to the accident, the defendant was entitled to the charge which he requested, and its refusal constituted reversible error.
It follows that the judgment and order must be reversed, and a new trial granted, with costs to the ...