Schonleben v. Interborough Rapid Transit Co.

Majority

p. 790

Joseph Schonleben, Appellant, v. Interborough Rapid Transit Company, Respondent.

First Department,

February 6, 1914.

Headnote

Railroad — negligence—injury to passenger by fall caused by screw projecting from floor of car — res ipsa loquitur.

Where, in an action by a passenger against a street railway company to recover for personal injuries alleged to have been caused by catching his shoe upon a screw projecting from one-half to three-fourths of an inch above the floor of the car, it appears that the plaintiff had no knowledge of the existence of the screw until he fell, and no evidence was offered as to how long it had been in that condition or that the defendant had knowledge of it at or prior to the accident, the doctrine of res ipsa loquitur applies, and it is error to dismiss the complaint.

Appeal by the plaintiff, Joseph Sohonleben, 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 17th day of November, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, upon a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the 12th day of November, 1913, denying plaintiff’s motion for a new trial.

Morris Cukor, for the appellant.

Lemuel E. Quigg, for the respondent.

The plaintiff was a passenger in one of defendant’s cars. The floor of the car was covered with wooden slats about an inch apart, fastened thereto by metal screws. One of these screws in the aisle between the seats projected above the slats from one-half to three-quarters of an inch. When the plaintiff reached his destination he was told to leave the car, and as he was doing so one of his shoes caught upon this screw and he was thrown down and injured. He had no knowledge of the existence of the screw until he was thrown down, and offered

p. 791

no evidence to show how long it had been in that condition; nor did it appear that the defendant had any knowledge, at or prior to the accident, of the actual condition of the screw when plaintiff was thrown. Plaintiff’s counsel having conceded that he could offer no further evidence upon that subject, the court dismissed the complaint and plaintiff appeals.

I am of the opinion the judgment should be reversed. The relation of the plaintiff to the defendant at the time of the accident was that of a passenger. The defendant was obligated to exercise the greatest care for his safety. The mere happening of the accident, under the circumstances described, imposed upon the defendant the duty of an explanation. It was bound, without any further evidence, to show, if it could, that the existence of the screw at the place and in the condition in which it was — which caused plaintiff to fall — was not due to its negligence. (Van Inwegen v. Erie R. R. Co., 126 App. Div. 297 ; affd., 194 N. Y. 534 ; Griffen v. Manice, 166 id. 188; Waldman v. Brooklyn Union Elevated R. R. Co., 136 App. Div. 376 ; Baum v. N. Y. & Q. C. R. Co., 124 id. 12; Paine v. Geneva, Waterloo, S. F. & C. L. Traction Co., 115 id. 729; Weir v. Union R. Co., 112 id. 109; Lomas v. New York City R. Co., 111 id. 332; affd., 188 N. Y. 628 .) The facts proved, within the- authorities cited, made aprima facie case for the plaintiff under the doctrine of res ipsa loquitur.

The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., Lahghlin, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.

Cases cited

Lomas v. New York City Railway Co. 188 N. Y. 628 N.Y. 1907-05-21 p. 791