
    Esther Glassman, Appellant, v. Thomas J. Surpless and George J. Lutz, Respondents.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Master and servant — Master’s liability for injuries to servant — Actions — Weight and sufficiency of evidence — Negligence on part of master.
    In an action to recover for personal injuries sustained by the falling of defendants’ elevator operated by-their servants, where it appears that the elevator fell with a crash and plaintiff was pulled out between two floors crying and hurt, there is evidence of negligence sufficient to submit to the jury and it is error to dismiss the complaint.
    Appeal by the plaintiff from a judgment of the City Gourt of the city of Hew York dismissing the complaint.
    Feeney & Kornblueh (David Kornblueh and Benjamin Marcus of counsel), for appellant.
    Fred E. Fishel, for respondents.
   Erlanger, J.

For injuries alleged to have been inflicted upon her through the negligence of the defendants, plaintiff sues to recover damages. The complaint charges that the defendants are the owners of a building eleven stories high, in which passenger elevator cars are maintained and operated by their employees; that on the day of the accident plaintiff was employed by one of the defendants’ tenants who occupied the tenth floor; that, in going to and from her work, it was necessary for her to use the elevator; that, on the evening of February 8, 1904, using due and reasonable care and without negligence or interference on her part, she entered the elevator to go to the ground floor; that, through the negligence of defendants and their servants and owing to the then bad condition of the elevator and to the fact that the operator of the car had no control of the lever, the car dropped with a sudden jerk from the tenth to the fourth floor; that in consequence she was violently thrown to the floor of the car and severely injured. The answer admits the ownership of the locus in quo and that the elevator was operated by employees of defendants. Upon this issue the parties proceeded to trial. The plaintiff testified to the falling of the elevator and that she and other girls were pulled out and she described her condition and injuries, the effect of which, it is claimed, largely decreased her earning capacity. Her employer testified that he was on the eighth floor at the time and all of a sudden heard a crash, or some extraordinary noise; that, in going to the elevator, he sac it slide and heard a noise coming from it; that he ran down to the floor; that a number of people were standing at the elevator door; that plaintiff was crying and hurt; that he and two of his employees pulled her out between the fifth and sixth floors. Another witness, in the elevator at tin time and also injured, testified: “We all entered the ele-

vator and it broke or something happened and the elevator fell.” This was substantially plaintiff’s proof at the time her case was rested; and, thereupon, a motion was made to dismiss the complaint “ upon the ground that there had been an absolute failure to show anything like liability or negligence on the part of the defendants and that the plaintiff has not shown anything other than an accidental movement of the elevator. It is true they say it fell to the floor.” Here followed some colloquy between counsel and the court as to the proof required on the part of the plaintiff, the defendants claiming that plaintiff was hound to show something in the way of a defect, or that points to a defect. Something must be shown out of the usual movements of the elevator; the mere moving, simply, of an elevator I do not think is sufficient to prove its breaking down as that may have occurred through carelessness on the part of the operator.” To this statement the court assented and dismissed the complaint. Plaintiff excepted. This ruling was error. It has been determined over and over again that, in cases of non-suit, the party non-suited is entitled to the most favorable inferences to be drawn from the evidence. Applying this rule, we think that sufficient facts were shown by plaintiff to entitle her to go to the jury. True, the defendants’ negligence was made the issuable fact in the case; and, while affirmative proof to establish negligence either in the condition or in the operation of the car was necessary, plaintiff was not required to prove the specific defect in the car or the particular act of misconduct in its operation. It was enough if plaintiff proved facts and circumstances from which the jury might fairly infer that the car was either defective in its condition or negligently operated. Peck v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 347. Defendants’ counsel in stating his grounds for a dismissal of the complaint declared “ that the breaking down may have occurred through carelessness on the part of the operator.” If that be true, plaintiff was entitled to go to the jury. A presumption of negligence may arise from the nature of the act — as for example the fall of an elevator. Griffen v. Manico, 166 N. Y. 188. That a cylinder burst and fell into the street. Goll v. Manhattan R. Co., 24 N. Y. St. Rep. 24; affd., 125 N. Y. 714. The fall into the street of a bolt from an elevated road. Volkmar v. Manhattan E. Co., 134 N. Y. 418. The fall of a brick into the street from a house in course of construction. Guldseth v. Carlin, 19 App. Div. 588. Fall of boom of derrick. Reed v. McCord, 18 App. Div. 381. Fall of chisel from structure into street. Cahalin v. Cochran, 1 N. Y. St. Rep. 583. Fall of live wire into street. Jones v. Union Ry. Co., 18 App. Div. 267. Shock from electricity. D’Arcy v. Westchester El. R. Co., 82 App. Div. 263. Instances might be multiplied by further citations, but the foregoing suffice to show that enough was established by plaintiff to put defendants to their proof. In Griffin v. Manice, supra, the Court of Appeals broadly assert that the principle of “ res ipsa loquitur ” depends upon its application “on the circumstances and character of the occurrence, and not on the relation between the parties, except indirectly, so far as that relation defines the measure of duty imposed on the defendant;” and the court, after illustrating the rule, goes on to say: “ The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present, hi either of these rules — that a fact may be proved by circumstantial evidence as well as by direct, and that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation — is confined to any particular class of cases, but they are general rules of evidence applicable wherever issuable facts are to be determined either in civil or criminal actions.” Bogendoerfer v. Jacobs, 97 App. Div. 355. Counsel for appellant contended in favor of.the application of this rule; but the trial court was not of the same opinion and, for the reasons shown, dismissed the complaint. We think this case falls within the rule of the cited and kindred cases and that, after plaintiff rested, the defendants were put to their proof to explain the cause of the accident. It may be that evidence can be produced to satisfy the jury that the cause was one which could not be foreseen and which may be found to absolve them from liability; but that question must be left to the arbitrament of a jury, the legally constituted tribunal to determine the facts. And so it was competent to prove that a similar accident occurred shortly before the one which happened to the plaintiff, as tending to establish notice to the defendants of some defect which required of them the exercise of reasonable care, both with regard to inspection as well as the repairs to be made, in order to make the car safe for those who had the right to make use of it. Hanselman v. Broad, 113 App. Div. 447, 449.

The judgment is reversed and a new trial ordered, with costs to appellant to abide the event.

G-iegeeich, J., concurs in result.

Gildersleeve, J. (concurring).

I concur in the result reached by my associate Hr. Justice Erlanger.

As the complaint was dismissed upon plaintiff’s evidence alone, such evidence is not only entitled to belief, but also to such favorable inferences as can reasonably be drawn therefrom. The undisputed facts are as follows, viz: Plaintiff was .employed by a tenant of defendants. She lawfully entered the passenger elevator in defendants’ building, which was entirely under the management and control of defendants’ servants. For some unexplained reason the elevator made a sudden drop from the "tenth floor of said building to a point between the fourth and fifth floors, where it as suddenly stopped short, thereby causing serious injuries to the plaintiff. The latter’s counsel sought to show, by one of the employers of plaintiff and a tenant in said building, as we have seen, that a similar accident to this elevator occurred about three months prior to the accident in question; but the court refused to admit such evidence, to which ruling exception was taken. The evidence was admissible as in some degree tending to show the probability of the dangerous condition of the elevator as well as notice of such danger to defendants. It seems to us also that the facts disclosed called upon the defendants for some explanation. The reasonable conclusion from the evidence adduced supports'the allegations in the complaint that the elevator car was in bad condition and that the employee who operated the car failed in his duty by not properly controlling the lever of the car. We think it was error to dismiss the complaint.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.  