Ross v. Bloomingdale Bros. — 205 Misc. 104

Majority

p. 104

Blanche A. Ross, Appellant, v. Bloomingdale Bros., Inc., Respondent.

Supreme Court, Appellate Term, First Department,

November 5, 1953.

Bennett Frankel for appellant.

John Nielsen and John P. Smith for respondent.

Plaintiff established a prima facie case since her accident, on the basis of her testimony, could only have occurred if the escalator was defectively constructed or designed. If the condition which caused the accident was due to a defect in the escalator not resulting from its construction or design, it was for the defendant to introduce evidence to that effect. On the basis of plaintiff’s testimony indicating that she did nothing improper while using the escalator, she made out a prima facie case under the doctrine of res ipsa loquitur. Cases holding that the mere happening of an accident is not evidence of negligence are inapplicable here since the accident could not have occurred if the escalator was not defective or unsafe.

The judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Schreiber and Hecht, JJ., concur; Eder, J., dissents and votes to affirm.

Judgment reversed, etc.