
    Caroline B. Gage, Appellant, v. Waldorf Astoria Hotel Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)'
    Negligence — failure of operator to control elevator in defendant’s hotel —■ action for personal injuries — evidence.
    Where an elevator in defendant’s hotel, upon which plaintiff and other guests were being carried, first went up too far, then dropped and finally fell to the bottom, defendant, in order to rebut the presumption of negligence arising from the happening of the accident, need not show its exact cause but must show that it was not negligent in regard to every probable cause. • An elevator in proper condition not being per se a dangerous instrument, the failure of the operator to control it raised a ' presumption that the accident was due either to his negligence or to a defect in the appliance itself.
    In order to justify the dismissal of the complaint in an action for personal injuries caused by the fall of the elevator, the evidence should have shown due care on the part of the operator so conclusively that the only fair inference was that the accident could not have been guarded against by the exercise of due care.
    The only testimony as to the accident, that of the operator, considered, and held to be too vague and insufficient to rebut the presumption of negligence arising from the accident itself.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint.
    Winter & Winter (Keyes Winter, of counsel), for appellant.
    Nadal, Jones & Mowton (Bernard G. Barton, of counsel), for respondent.
   Lehman, J.

The plaintiff was injured by the fall of an elevator operated by the defendant in its hotel. It appears that the plaintiff entered the elevator with a number of other persons upon the invitation of the defendant; that when the elevator reached the floor where the passengers desired to alight the operator failed to stop; that the elevator first went up too far, then dropped down and finally fell to the.bottom. The trial justice held that the circumstances surrounding the accident were sufficient to allow the reasonable inference that the elevator would not have fallen if it had been operated and maintained with due care. Thereafter the defendant showed that the elevator was inspected after the accident; that at that time the entire appliance, including the brakes, acted properly and that it inspected the elevator at reasonable intervals. The operator also testified that at the time of the accident he operated the elevator in the usual and customary manner and that he could not stop it or prevent its fall. Upon this testimony the trial justice dismissed the complaint.

The plaintiff now contends that this evidence did not conclusively rebut the inference of negligence that would be reasonably raised from the surrounding circumstances. This inference or presumption arises from the fact that such an accident would not ordinarily happen under the circumstances testified to if the required degree of care had been used. To rebut this inference the defendant need not show the exact cause of the accident, but it must show that it was not negligent in regard to all probable cause. Sweeney v. Edison Electric Illuminating Co., 158 App. Div. 449. In other words, since the circumstances surrounding the accident are sufficient to show that the accident would not ordinarily occur except through the'defendant’s negligence either in the operation or maintenance of the elevator, even though the exact cause of the accident cannot be shown, the inference of negligence which may be drawn from such circumstances can be rebutted only by proof of the cause of the accident and that such cause was not due to negligence on defendant’s part, or by such proof of actual care on the part of the defendant as will show that whatever may have been the cause of the accident it cannot be ascribed to any negligence on the part of the defendant.

In this case the operator of an elevator failed to control its motion so that it first ascended and then dropped to the bottom. An elevator is not per se a dangerous instrument. Where an operator is furnished with an elevator in proper condition he can ordinarily handle it by the use of due care. It follows that in the absence of proof of some extraordinary circumstances it is a fair inference that failure to control the elevator was due either to the negligence of the operator or to a defect in the appliance. A defect in an elevator, rendering it uncontrollable, does not ordinarily arise if the defendant uses that degree of care in its inspection which may reasonably be expected of a hotel keeper who invites his guests to use it; hence a fair inference arises that the accident would not have arisen if the defendant had used due care in the operation and inspection of the elevator. If the defendant had shown that the accident occurred through a break or defect in the appliance, then, his proof of reasonable inspection would have been material to show that he had, as a matter of fact, used due care to provide a safe appliance. The defendant, however, not only did not show that the cause of the accident was a break or defect in the machinery, but it did affirmatively appear that after the accident the appliance was in a satisfactory condition. The result of this testimony standing alone certainly failed to rebut the inference that could reasonably be raised from the plaintiffs testimony. On the contrary, if it is shown that an elevator without any defects could not be controlled by its operator, then the only probable explanation of the accident is that the operator was negligent. The defendant claims, however, that he did show affirmatively that the operator used due care. In order to justify a dismissal of the'complaint such evidence must show care, so conclusively that the only fair inference from the entire case is that this is one of those rare accidents that occur occasionally by some unexplained cause which could not be guarded against by the use of due care. The evidence produced by this defendant is by no means of such a nature. • The only testimony given as to the accident is given by the elevator operator himself, and is very vague. Assuming that it is sufficient, if believed by the jury, to show due care, it is certainly not conclusive. Common experience shows that the cases where a perfect appliance cannot be handled without accident by a competent operator are so rare that, in the absence of proof of unusual circumstances, the jury would not be bound to accept the testimony of the operator that he had used due care and that, therefore, the only fair inference is that the accident was due to some unexplained cause beyond the defendant’s control.

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

Hendrick, J., concurs.

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