Rosen v. Pottebaum — 151 A.D. 713

Majority

p. 713

Sadie Rosen, Appellant, v. Charles Pottebaum, Respondent.

First Department,

June 28, 1912.

Headnote

Landlord and tenant—negligence—injury from breaking of rope attached to dumbwaiter — evidence.

Action by a tenant to recover for personal injuries alleged to have been caused by the breaking of the operating rope attached to a dumbwaiter used in common by the tenants of the defendant. Evidence examined, and held, sufficient to establish negligence of the defendant.

Appeal by the plaintiff, Sadie Rosen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an. order entered in said clerk’s office on the 29th day of January, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

I. Gainsburg, for the appellant.

Leon N. Futter, for the respondent.

The action is for negligence. The plaintiff was injured by. the breaking of the. operating rope attached to a dumbwaiter used in common by different tenants in a tenement house owned by the defendant. The dumbwaiter was hung by a rope passing through a pulley at the top of the shaft and having a weight attached at the other end. Another rope, called the operating rope, ran through a pulley at ■ the top of the shaft and by means of couplings was attached to the other rope. The plaintiff was pulling on the operating rope to raise the dumbwaiter when that rope with the coupling attached fell, striking her upon the arm and causing the injury complained of.

There is no question but that the defendant was in control and responsible for the condition of the dumbwaiter.. While the evidence of negligence, apart from the occurrence itself, is slight, there is evidence that the dumbwaiter broke down two months before the accident and that the ropes were repaired.

p. 714

The plaintiff’s husband testified that in November (the accident happened on the seventeenth of December) he observed the condition of the rope; that it was thinner in some places than others; that shreds had come out, especially where the couplings were. He says that he called the attention of the janitor to it. The plaintiff also testified that on the second of December she called -the attention of the rent collector to the condition of the dumbwaiter and that he promised to have it inspected.

We think that the evidence, slight as it was, when considered in connection with the circumstances of the accident itself, was sufficient to put the defendant to his proof. A rope in proper condition does not ordinarily break unless subjected to a greater strain than was apparently put upon the rope in question, and while it is unnecessary to go so far as to say that the rule res ipsa loquitur applies, the accident at least suggests a defective condition of the rope, and the only evidence in the case tends to confirm that suggestion.

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

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

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