
    John Samuels, as Administrator, etc., of Aaron E. Samuels, Deceased, Plaintiff, v. John McKesson, Jr., and Others, Defendants.
    Second Department,
    June 8, 1906.
    Negligence — injury by breaking of elevator — when question of negligence for jury.
    When it is shown that the bottom of an elevator upon which the plaintiff’s intestate, an employee, was riding was torn from the car, whereby the intestate fell and was killed, and also that the elevator tilted and jerked as if the bottom were caught, the doctrine of res ipsa loquitxir applies and the defendant's negligence ■ is for the jury. •
    A contention by the defendant that one.of the handtrucks taken on the elevator by the plaintiff and a coemployee projected and caught the top of the shaft opening and caused the accident is not established as a matter of law, when the trucks were fuiil structures, and do not seem to have been injured more than might have been caused by the fall to the basement.
    Motion by the plaintiff, John Samuels, as administrator, etc., of Aaron E. Samuels, deceased, for a new trial upon a case containing ■ exceptions, ordered to be heard at the Appéllate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Kings Coimty Trial Term in May, 1905. ,
    
      Isaac M. Kapper, for the plaintiff.
    
      Frederick Hulse, for the defendants.
   Gaynor, J.:

It seems to me that this case belonged to the jury, though the question may be close., The deceased and another employee of the defendants got on the elevator with handtrucks to be taken up in the defendants’ -building in which they worked. After the elevator had gone a few feet the bottom.of it was torn out and the deceased fell to the basement and was killed. It was being run. by the person employed By the defendants to run it. There was evidence that the' elevator was in -the habit of shaking and tilting, and of jerking as though the sides of the bottom caught. That the floor or bottom was caught in the shaft and torn out at the time of the accident is beyond doubt. That alone would make the maxim that the thing speaks for' itself apply. But the defendants tried to make it appear that the accident happened by one of the handtrucks projecting and being caught at the top of the opening of the shaft at the floor above. It cannot be said that this was shown as matter of law, if at all. No one saw it happen, and the handtrucks were -frail, one being of papier maché and the other made of a packing box. The jury might have found that if one or-both of them had projected in the way claimed, they could not have caused the strong-bolted plank floor of the elevator to be torn away as it was. Moreover, the handtrucks do not seem to, have had any injury which they might not have received from their fall to the basement.

The exceptions should be sustained and a new trial ordered.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Plaintiff’s exceptions sustained and new trial granted, costs to abide the event.  