Ida Allen, Appellant, v. United Traction Company, Respondent

Ida Allen, Appellant, v. United Traction Company, Respondent. Negligence—injury from the falling of a fire extinguisher in a street ca/r—submission of the case to the jury—res ipsa loquitur. This action was brought to recover damages for personal injuries sustained by the plaintiff while riding in one of the defendant’s street cars in consequence of the falling of a fire extinguisher, a metal tube fourteen inches long and two inches in diameter which weighed twenty-four and one-half ounces. It was attached to the front of the car near the top of the door about twenty inches above the plaintiff's head, and at the top was fastened by a loop of cord or wire to a screw inserted in. the side of the car. The bottom of the extinguisher rested upon a metal plate Which was also attached to the car. The plaintiff testified that after the extinguisher fell she noticed that the ends of the wire or cord were frayed and ragged. Held, that it was error to dismiss the complaint, and (by Smith, Kellogg and Edwards, JJ.) that the circumstances surrounding the accident warranted the application of the doctrine of res ipsa loquitur. Appeal by the plaintiff, Ida Allen, from a judgment of the • Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of December, 1900, upon the dismissal of the complaint by direction of the court after a- trial at the Albany Trial Term. . Upon the 27th day of February, 1900, the plaintiff, while a passenger upon one of defendant’s cars, was injured by the fall of a metal fire extinguisher placed in said car by the defendant. This fire extinguisher was a metal tube fourteen inches long and two inches in diameter and was filled with a chemical powder; it weighed twenty-four and one-half ounces. It was attached to the front of the car near the top of the door on the right-hand side, the tube of said extinguisher being suspended twenty or more inches above the head of the plaintiff. .From the top of the extinguisher there extended a small loop ; one end. was attached to the extinguisher, the other to a screw inserted in the side of the car. The bottom of the extinguisher rested’ upon a metallic plate also attached to the car. The loop above referred to was a piece of cord or wire which the jury might have found was broken. After the extinguisher had fallen and struck the plaintiff it then fell to the floor. The plaintiff swears that she noticed the condition of the wire or cord and that the ends were frayed and ragged. Upon proof of these facts the plaintiff rested, and upon defendant’s motion her complaint was dismissed. From the judgment entered thereupon this appeal is taken. Fellows & McElwain, for the appellant. Simon W. Rosendale, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: Had this extinguisher been securely fastened plaintiff would not have suffered injury. Its fall must have been due either to negligent fastening originally or- to a negligent maintenance óf a fastening originally sound. The fastening was beyond the-reach of ordinary interference by those going to and from the car. ■ That an outsider should have interfered and rendered insecure this fastening is most improbable. Without deciding. then the degree of care required of the defendant in securing this extinguisher, we are clearly of the opinion that the circumstances surrounding the happening of the accident point to some negligence on the part of the defendant which called for its explanation. The doctrine of res ipsa lóquitv/r has received recent consideration from the courts and the doctrine has been given a liberal construction. In Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297) the rule is thus stated: “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” In Griffen v. Manice (166 N. Y. 188) the cases are examined, and the rule above stated is approved. The opinion in part reads: “ The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury is exclusively vested in ■"the,-defendant,-it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.” These views have been recently reiterated in this department in the case of Fink v. Slade (66 App. Div. 105), and also find support in analogous cases in this and other States. In White v. Boston & Albany R. R. Co. (144 Mass. 404) it is held that there is a presumption of negligence where a passenger is injured by the falling of a lamp shade. In Och v. M. K. & T. Ry. Co. (130 Mo. 27) presumption of negligence was held to arise where the injury was caused by the falling of a ventilator window. In Horn v. New Jersey Steamboat Co. (23 App. Div. 302) it was held that the falling of an upper berth from unexplained cause was grima facie evidence of negligence on the part of the steamboat company. (See, also, Gerlach v. Edelmeyer, 15 J. & S. 292; affd., 88 N. Y. 645; Wolf v. American Tract Society, 164 id. 30; Stewart v. Ferguson, 52 App. Div. 317, 320.) Within these authorities we think the learned court below was in error in dismissing plaintiffs complaint. Kellogg and Edwards, JJ., concurred; Parker, P. J., and Chase, J., in result. Judgment reversed and a new trial granted, with costs to appellant to abide event.