
    Abraham Klein, Respondent, v. Mary L. Fraser, Appellant.
    First Department,
    November 19, 1915.
    Negligence — injury by fall of elevator — evidence — res ipsa loquitur — erroneous charge.
    "Where an elevator car descending to the ground floor with passengers failed to stop at that floor but fell to the bottom of the shaft where it struck springs and rebounded, and a passenger was injured in a panic caused thereby, the happening of the accident raises a presumption of negligence under the rule of res ipsa loquitur.
    
    But in an action to recover for injuries so caused, it is reversible error for the court to charge that the falling of the car east upon the defendant the burden of explaining how it fell. This, because the rule of res ipsa loquitur did not require the defendant to prove how the accident happened, but only placed her under the burden of showing the exercise of due care to guard against the happening of such an accident.
    Appeal by the defendant, Mary L. Fraser, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1915, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 14th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Walter L. Glenney, for the appellant.
    
      Joseph I. Green, for the respondent.
   SCOTT, J.:

The plaintiff was injured while a passenger in an elevator car in a loft building owned by defendant. The car was crowded with passengers on its downward trip, and for some reason did not stop at the bottom or ground floor, but ran onto the springs or bumpers in the bottom of the well, rebounding so that when it stopped the floor of the car was about eighteen inches lower than the floor of the hallway. No one but the plaintiff seems to have been injured, but the other passengers in the car were apparently thrown into something of a panic, in the course of which plaintiff was thrown down and injured. His injuries appeared at first to be slight, but it is claimed that he never fully recovered from them, and that they constituted the producing cause of a very serious ailment which developed many months afterwards. The causal connection between the injuries received in consequence of the fall of the elevator car and the serious illness afterwards discovered is not very convincingly shown, and none of the experts called in the case was willing to go further than to say that the original injury might have been a producing cause of the later ailment. The jury, however, have found for the plaintiff upon this issue, and since the evidence upon the subject upon the new trial, which we feel compelled to order, may differ from that now before us, we do not pass upon the sufficiency of the evidence to sustain the verdict.

The legal error in the case is found in the charge as to the burden of proof. The plaintiff’s right to recover at all rested necessarily upon his claim that the elevator was either negligently maintained or negligently operated. The plaintiff claimed, and rightly, that the fact that the car fell supplied evidence of negligence which, unexplained, would have justified a verdict in plaintiff’s favor on the issue of defendant’s negligence. (Griffen v. Manice, 166 N. Y. 188.) The rule of res ipsa loquitur upon which plaintiff relied to establish defendant’s negligence is merely a rule of evidence, which may be rebutted by a showing by defendant that she in fact had not been negligent. The court in the case at bar imposed a much more onerous burden upon the defendant by charging in plain terms, and more than once, that the fall of the car cast upon defendant the burden of explaining how it fell. What was cast upon the defendant by the fact of the accident was, not to prove just how the accident happened, but that she had exercised due care to guard against the happening of such an accident. (Sweeney v. Edison Electric Ill. Co., 158 App. Div. 449, 452; Huscher v. N. Y. & Queens El. L. & P. Co., Id. 422, 425.) Under the charge in the present case the jury might have found that defendant had been free from negligence, as she claimed to have been, in the maintenance of the elevator, and yet have rendered a verdict against her because she was unable to explain the precise cause of the accident. This is an unwarranted extension of. the rule of res ipsa loquitur. We are urged to disregard this error in the charge as one which in all probability did not affect the verdict. In some cases we might properly adopt this course. Tn the present case, however, the questions at issue were so close, and the plaintiff’s right to recover large damages so debatable that we should not feel justified in disregarding, as unimportant, a clearly erroneous charge.

The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

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