
    Maybelle C. Murray, Respondent, v. The Great Atlantic and Pacific Tea Company, Appellant, Impleaded with M. Moran Transportation Lines, Incorporated, Defendant.
    Fourth Department,
    October 11, 1932.
    
      John H. Dominick and Mursett C. Luckner, for the appellant.
    
      Clarence G. Pickard, for the respondent.
   Per Curiam.

The charge that the doctrine of res ipsa loquitur applied was erroneous, it not appearing conclusively that all agencies contributing to the mishap were under the control of the appealing defendant (Wolf v. American Tract Society, 164 N. Y. 30; Francey v. Rutland R. R. Co., 222 id. 482), and plaintiff having presented testimony as to facts reaching outside of the mere happening of the accident and — as claimed — tending to prove negligence in the appealing defendant. The proof as to the extent of the physical injuries claimed to have been caused to plaintiff Maybelle C. Murray and of negligence in appellant causing such injuries is not so convincing that we may overlook this error.

All concur.

Judgment and order reversed on the law and new trial granted as to the appealing defendant, with costs to appellant to abide the event.  