George Foltis, Inc. v. City of New York

The premises occupied by the plaintiff as a restaurant were damaged by water from a broken

At the close of the plaintiff’s evidence, the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a prima facie case. After some discussion the trial judge stated that in view of conflict of judicial authority he felt that the question of whether the rule of res ipsa loquitur applies should receive more careful consideration than he could give to it at that time. For that reason, he suggested that he should reserve decision upon the defendant’s motion to dismiss and that, after hearing the evidence of the defendant he should also reserve decision upon the motions which both parties would make at the close of the whole case, until the jury had answered five questions which he proposed to submit. Both sides acquiesced in that suggestion.

The five questions which the trial judge stated he would submit to the jury are:

“ (1) Was the defendant negligent in failing to use reasonable care in the construction of the water main which broke?

“ (2) Was the defendant negligent in failing to use reasonable care in maintaining the water main in a reasonably proper state of repair?

“ (3) Was the defendant negligent in failing to be reasonably diligent in shutting off the water after receiving notice of the break?

“ (5) If your answer to question No. 3 is yes, what is the amount of damage which was caused to the plaintiff in consequence of the failure to shut off the water with reasonable diligence? ”

The defendant city then produced evidence sufficient, if credited, to show that it did not fail in any duty to exercise reasonable diligence in shutting off the water after it received notice of the break. Even if without fault there, the city would still be liable for damages caused by the break if the break was due to its negligence, either in the construction or maintenance of the water main. The city produced no evidence to show the cause of the break. It did attempt to prove that whatever may have been the cause of the break, no negligence by the city, either in the construction or maintenance of the pipe, caused or contributed to the injury. For that purpose it produced evidence which, if credited, was sufficient to show that the pipes were new when laid; that field inspectors of the city tested carefully all pipes before they were laid; and that it was their duty to see that the pipes were properly laid. It is undisputed that cast iron pipes do not wear out or become defective from ordinary use for many decades and, perhaps, for centuries; but the length of life of such pipes may be affected by chemicals in the ground as well as in the water.

At the close of the case the defendant made a motion to dismiss the complaint and also for the direction of a verdict. The trial judge reserved decision upon that motion. The plaintiff’s attorney then stated, “ I have no motions to make. I am not going to join in the motion for a directed verdict. I ask to go to the jury on all the grounds that I have set forth in the memorandum I gave your Honor * * Even without a motion by the plaintiff for the direction of a verdict the trial judge would be required to determine whether the rule of res ipsa loquitur could be applied in this case. Without application of that rule it is plain that

In the following colloquy the trial judge pointed out to the plaintiff’s attorney that a motion for the direction of a verdict would not have the effect of a submission of questions of fact to the court but that the failure to make such a motion would have the effect' of a concession that a question of fact exists which must be submitted to the jury:

“ The Court: In order to relieve your mind of any possible difficulty you think you might be in by moving to direct a verdict, I will say now that if you do move to direct a verdict, I will not take that as joining in the motion. I do not think there is any such thing as joining in a motion for a directed verdict except it is done deliberately for the purpose of submitting the questions of factto the Court.

“ Suppose I should ultimately decide that the rule of res ipsa loquitur applies and the Jury has found a verdict for the defendant, should you not have your record in condition where any Appellate Court could decide either way without the necessity for a new trialf

“ Mr. Klein: I am very grateful to your Honor for the suggestion you have made and putting it in the proper light. Frankly, sir, I had not given that consideration, and with that in mind, then I also join for a directed verdict.

“ The Court: You do not join. You made a separate independent motion for a directed verdict. j

“ Mr. Klein: Yes, sir. I also move for a directed verdict on that issue. ' !

“ The Court: I will reserve decision on both.

“ Mr. Klein: Thank you for your Honor’s suggestion because that will preserve any rights the plaintiff may have.”

The plaintiff cannot now contend that the parties submitted to the court any question of fact if under the rule of res ipsa loquitur the evidence is sufficient to permit, but insufficient to dictate as matter of law, an inference of negligence.

The jury answered the first three questions in the negative, finding that the defendant had not failed to use reasonable care in the construction or maintenance of the water main, nor had it failed to use reasonable diligence in shutting off the water. In answer to the fourth question the jury found that the plaintiff had sustained damages of $2,500. The trial judge, disregarding the findings of the jury in favor of the defendant, held that the rule of res ipsa loquitur applied and, as matter of law, dictated an inference or presumption of negligence. He, therefore, granted the motion of the plaintiff, upon which decision had been reserved, for the direction of a verdict for the amount of damages suffered by the plaintiff, as found by the jury.

We have said that “ where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such

We must determine whether the rule of res ipsa loquitur may be applied, in accordance with those principles, to the proof tendered in this case; whether, upon “ a commonsense appraisal of the probative value ” of the circumstantial evidence, measured in part by the test of whether it is the best evidence available, inference of negligence is justified. Here the pipes were in position for almost nine years before any break occurred. In accordance with proper practice they had been laid four feet below the surface. There is no evidence or suggestion that from the time when the

In spite of such arguments the courts in some cases have applied' the rule of res ipsa loquitur where the injury occurred from a break in an underground water main and have held that under that rule proof of the break constitutes circumstantial evidence sufficient to establish prima facie that the injury was due to the negligence of the public authorities. (Higginson v. City of New York, 181 App. Div. 367 ; Buffums v. City of Long Beach, 111 Cal. App. 327 ; Esberg-Gunst Cigar Co. v. City of Portland, 34 Ore. 282 .) In other cases courts have reached the opposite contention. (Terry v. Mayor, 8 Bosw. 504 ; Goldman v. City of Boston, 274 Mass. 329 .)

A “ common-sense appraisal of the probative value of circumstantial evidence ” excludes the arbitrary use of any rule of thumb. In directing a verdict for the plaintiff in this case the trial judge, Mr. Justice Walter, wrote a notably careful opinion in which he points out that the doctrine of res ipsa loquitur does not mean that the “ plaintiff may recover without sustaining the burden of proving negligence by a fair preponderance of the credible evidence. (Goldstein v. Pullman Co., 220 N. Y. 549 , 554.) The doctrine merely means that certain occurrences contain within themselves a sufficient basis for an inference of negligence, and it does not differ from ordinary cases of circumstantial evidence except in the respect that the facts and circumstances from which the inference of negligence is drawn are immediately attendant on the occurrence. (Griffen v. Manice, 166 N. Y. 188 , 196; Robinson v. Consol. Gas Co., 194 N. Y. 37 , 40, 41; Plumb v. Richmond L. & R. R. Co., 233 N. Y, 285 , 288.) The doctrine is not confined to any

The fact that the break occurred in a water main which ' had been buried in the ground for several years weakens . the probative value of the evidence but it does not completely destroy it. Slight differences in the evidence might change the inferences which may fairly be drawn, but we agree with the trial judge that in this case an inference of ; negligence might reasonably be drawn from the unexplained occurrence of the break. True, more than a remote possibility would still remain that the break may have been . the result of causes against which the city could not by' vigilance guard, and by stressing one circumstance rather , than another the inference that the injury was due to any dereliction of duty by the city may gain or lose in strength. 1 If the city has in its control evidence which would make ¡ clear the cause of the break or would show exactly what' care it has exercised in the construction and maintenance of the water main, a failure to produce such evidence might be a factor in weighing probabilities. Reasonable men might perhaps differ as to the inference that should be drawn from the occurrence of the break even though the city should offer no proof, but we think that both reason and the weight of authority support the ruling of the trial judge that the defendant’s motion at the close of the plain

Though the plaintiff’s proof, when it rested, may have been sufficient to establish prima facie the negligence of the defendant, it was certainly not conclusive proof. Even where the rule of res ipsa loquitur is applied, the burden of showing that the injury is due to the negligence of the defendant rests on the plaintiff. The burden never shifts to the defendant, and the plaintiff must sustain its claim by a preponderance of evidence. (Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285 .) Here the defendant produced evidence intended to meet the prima fade case established by the plaintiff. The jury is the trier of the facts. If conflicting inferences may be drawn, choice of inference must be made by the jury. Upon all the evidence in this case the jury refused to find that the plaintiff had proven negligence by a preponderance of evidence. Its verdict may not be disregarded unless at the close of the whole case the plaintiff’s prima facie proof had become conclusive.

The evidence produced by the defendant, as we have said, did not reveal the cause of the break. No burden rests upon the city to show that. Possible inference arising from the occurrence of the injury, that it was due to the negligence of the city would, of course, be completely rebutted by conclusive affirmative proof that the city had exercised all care reasonably possible in the manner in which it tested the pipes and supervised the laying of the main. Then it would be clear that whatever might have been the cause of the break, it was not due to any dereliction of the defendant. Here the defendant’s evidence, even if believed by the jury, might, we may assume, still leave open the possibility that the injury was due to fault in laying the pipe. To that extent the defendant’s testimony does not completely rebut the plaintiff’s

The direction of a verdict in favor of the plaintiff might be justified if the rule of res ipsa loquitur created a full presumption in favor of the plaintiff. It is without logical foundation if res ipsa loquitur is only a common-sense rule for the appraisal of the probative force of evidence which enables an injured person, in proper case, to establish prima facie that the injury was caused by the defendant’s negligence, though the injured person may be unable to produce direct evidence of want of care in any particular. (See Wigmore on Evidence [3d ed.], § 2509.) It has been said by the Supreme Court of the United States that “ Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.” (Sweeney v. Erving, 228 U. S. 233 , 240.)

In other jurisdictions, too, the courts have held that even where a defendant does not produce evidence to rebut the plaintiff’s prima facie case established by application of the rule of res ipsa loquitur, it is for the jury to determine whether the inference of negligence should be drawn. (Hughes v. Atlantic City & Shore R. R. Co., 85 N. J. L. 212 ; Ross v. Cotton Mills, 140 N. C. 115 ; White v. Hines, 182 N. C. 275 ; Glowacki v. Northwestern Ohio Ry. & Power Co., 116 Ohio St. 451 .) The analysis of the origin, nature and scope of the doctrine or rule of res ipsa loquitur contained

Relying upon the authority of Hogan v. Manhattan Ry. Co. ( 149 N. Y. 23 ), the trial judge felt constrained to reject this conclusion and to hold that the rule is different in this state. Disregarding the finding of the jury in favor of the defendant he directed a verdict in favor of the plaintiff because the defendant’s evidence, even if credited, fell short of rebutting, in all particulars, the inference that the defendant’s negligence caused the injury and because it still left open the possibility that the break may have been due to the negligence of the city in constructing the main. In the cited case the Court of Appeals affirmed a judgment in favor of the plaintiff, entered upon a verdict directed by the trial court, where the plaintiff relied upon the rule or doctrine of res ipsa loquitur to establish his cause of action. The defendant in that case offered no evidence and the court said in its opinion: “ We think the case was properly disposed of at the trial for the reason that the undisputed evidence raised a presumption of negligence against the defendant. A verdict for the defendant on the record as it stands would be set aside as contrary to the evidence. * * * The plaintiff sustained the burden of proof and it was incumbent upon the defendant to offer evidence, if any existed, to rebut the presumption of negligence” (p. 25).

Though in some other jurisdictions it has been held that where a defendant produces no evidence to rebut an inference or presumption of negligence, arising under the rule of res ipsa loquitur, the court may direct a verdict in plaintiff’s favor, in no case has it been held that a verdict may be directed where evidence is presented by the defendant

We should not, however, place our decision in this case upon any narrow ground. A study of the opinions of the appellate courts of this state reveals that judges have used the terms “ inference ” and “ presumption ” indiscriminately and without recognition that an “ inference ” and a “ presumption ” are not identical in scope or effect. Judicial failure to note the distinction has led to confusion of thought and often to inconsistencies in judicial opinions and decisions. (See Volkmar v. Manhattan Ry. Co., 134 N. Y. 418 ; Loudoun v. Eighth Avenue R. R. Co., 162 N. Y. 380 ; Cunningham v. Dady, 191 N. Y. 152 ; Plumb v. Richmond L. & R. R. Co., 233 N. Y. 285 .) It is perhaps impossible for trial judges to deduce from the opinions or decisions of the appellate court the procedure they should follow when under the rule of res ipsa loquitur the plaintiff has established prima facie that injury was due to the negligence of the defendant and the defendant introduces no evidence in rebuttal. (See Rosenthal, “ Procedural Effect of Res Ipsa Loquitur,” 22 Cornell Law Quarterly [1936], p. 39.) The opinion of Mr. Justice Walter'has served to make manifest the fact that the fault for diversity of procedure in the trial courts does not lie there. The time has' come to attempt authoritative formulation of the procedural rule, confused in this state as in other jurisdictions by earlier failure to appreciate fully the implications latent in the rule of res

Where a plaintiff establishes prima facie by direct evidence that injury was caused by negligence of the defendant the court may seldom direct a verdict, though the plaintiff’s evidence is not contradicted or rebutted by the defendant. In such cases the question of whether the defendant was in fault in what he did or failed to do is ordinarily one of fact to be determined by the jury unless the jury is waived. The practice should be the same where under the rule of res ipsa loquitur the plaintiff establishes prima facie by circumstantial evidence a right to recover.

In cases later than Hogan v. Manhattan Ry. Co. this court has indicated the practice that should be followed, though even in those cases the terms “ presumption ” and “ inference ” are at times used indiscriminately. Thus in Salomone v. Yellow Taxi Corp. ( 242 N. Y. 251 , at p. 259) this court has said: “ In cases of this kind dealing with inferences and presumptions, it is the jury and not the judge which is to draw the inference and determine the effect of presumptions. It is not the accident which alone and of itself may raise the presumption of negligence. It is the accident accompanied by all the surrounding circumstances. The circumstances and the events leading up to the accident may overcome any presumption of negligence which might otherwise arise. Even when there be a presumption of negligence arising from a failure upon the part of a common carrier to explain how an accident happened, it is for the jury to say whether the presumption, which is only prima facie evidence of negligence, entitles the plaintiff to a verdict. Upon a prima facie case, the jury may not find for the plaintiff; they are justified at law in so finding, but they are not compelled to award damages. The remoteness of the accident from the conclusion which a reasoning mind would draw from the defendant’s failure to explain, may always be taken into consideration. That is, a failure to explain does not necessarily indicate negligence.” (Italics are new.)

■ The trial court has not yet passed upon the motion of the plaintiff to set aside these findings or the motion of the defendant for judgment upon these findings. Bach party is entitled to a decision of the motion it has made and either party mayjippeal from the order or judgment entered upon such decision. For these reasons the judgment must be reversed and the proceedings remitted to the trial court to decide the motions made by both parties after the jury reported to the court. In order to assist the trial judge in his consideration of these motions, we should point out some of the consequences of what we have said and decided in this case.

The trial judge has submitted to the jury as separate questions (1) whether the defendant was negligent in the construction of the water main, and (2) whether the defendant was negligent in maintaining the water main in a reasonably safe condition. The evidence, even by application of the rule or doctrine of res ipsa loquitur, is insufficient to sustain a finding of negligence in either particular considered separately; it is sufficient to sustain a finding that the break would not have occurred if the defendant had exercised due care in all particulars. The use of such words as “ res ipsa loquitur ” or an attempt to discuss

The same logical difficulty in reconciling the decisions of this court, which inevitably caused confusion as to the procedural effect of the application of the rule or doctrine of res ipsa loquitur, resulted no less inevitably in failure to submit to the jury the decisive question in this case in a form which would enable the jury to exercise its functions in accordance with the principles outlined above. The fault, we have said, does not lie with the trial judge and for. the same reasons it does not lie with the parties if they failed by proper exceptions and requests to charge to ask for a more adequate submission of the decisive cuestión. The trial judge has power to grant the plaintiff’s ^motion to set aside the findings of the jury if he concludes that for such reasons there should be a new trial.

The judgments should be reversed and the case remitted to the Trial Term to proceed in accordance with this: opinion, with costs in all courts to appellant to abide the event.

(dissenting). This was a res ipsa case. (Bordon v. Central Hudson Gas & Electric Corp., 272 N. Y. 596 .) Whether the unexplained break in the city’s pipe was sufficient warrant for a finding of negligence was thus primarily a question of fact. (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297 .) After the jury had found the plaintiff’s damages to be $2,500, the parties stipulated that the trial judge should reserve decision on all motions and thereafter “ announce a decision and make the appropriate direction with the same force and effect as if the jury were present.”

I do not believe the trial judge misconceived the authorities he so carefully collated. If he thought the parties meant to leave the decision of the present issue to him, I am not prepared to say he was wrong in that understanding of the theory of the trial. Even if he directed the verdict against the city in the belief that a verdict the other way would strike every fair mind as indefensible in point of sense, I am still not disposed to take the other side, (Cf. Hogan v. Manhattan Ry. Co., 149 N. Y. 23 .)

. I vote to affirm the judgments of the courts below.

Finch, Rippey, Lewis, Conway and Desmond, JJ., concur with Lehman, Ch. J.; Loughran, J., dissents in opinion.

Judgment accordingly.