Slater v. Barnes

Citation241 N.Y. 284,149 N.E. 859
PartiesSLATER v. BARNES.
Decision Date24 November 1925
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Action by Anna Slater against Alfred Victor Barnes. From a unanimous judgment of the Appellate Division (212 App. Div. 860, 207 N. Y. S. 921), affirming a judgment of the Trial Term entered on a verdict, defendant appeals.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First department.

Walter L. Glenney, John D. Fearhake and Bertrand L. Pettigrew, all of New York City, for appellant.

Adelma H. Burd, of New York City, for respondent.

HISCOCK, C. J.

This action is brought to recover damages for personal injuries caused by the fall of plaster from the ceiling of a room included in an apartment rented by plaintiff of defendant in 1917.

Stripped of legal questions presented by the manner in which the case was tried, the real claim of the plaintiff is that in 1913 some plaster fell from the ceiling of the same room then rented by her, that defendant caused the hole in the ceiling thus produced to be repaired by replastering, and that the plaster which fell and caused plaintiff's injuries was the same plaster which was thus filled in on the prior occasion, and that the fall was due to the negligent manner in which the replastering had been done.

The trial judge originally held that this situation was covered by section 102 of the Tenement House Law (Cons. Laws, c. 61) and that thereunder an absolute obligation rested on the defendant to keep the ceiling in proper repair. Subsequently, however, he changed his views and eliminated from application and consideration this provision, and thus left the rights and liabilities of the parties to be measured by the ordinary principles of common law applicable to the relationship of landlord and tenant. It is unnecessary to consider whether under these principles an obligation rested upon the defendant to repair the ceiling when the plaster fell in 1913; there being no allegation in the complaint of any obligation assumed by him in the lease then existing to make such repairs. The defendant on the trial assumed that such duty existed, and that he was responsible for repairing the ceiling in a reasonably safe and proper manner. Thus a simple issue of fact was presented by the claim and evidence of the plaintiff on one side, that this prior work of repairing was not properly or safely done, resulting in her accident, and of the defendant on the other side that the contrary was true, and that the work was properly and safely done. If this issue had been submitted to the jury under the rules ordinarily applicable to the decision by it of a question of negligence, we should find no trouble with the judgment appealed from. Unfortunately, however, this was not done. The trial justice, in his instructions to the jury, did at times seem to regard the issue as one to be submitted to the jury under ordinary principles such as we have referred to. But in other places and repeatedly in his charge he applied the doctrine of res ipsa loquitur to the case in such a manner as was erroneous and was so necessarily calculated in our opinion to mislead the jury as to require a new trial.

[1] He stated the general rule of res ipsa loquitur, and then, in attempted application of it to the facts of ...

To continue reading

Request your trial
29 cases
  • Riley v. Capital Airlines, Inc.
    • United States
    • New York Supreme Court
    • June 21, 1963
    ...N.Y. 37, 86 N.E. 805, 28 L.R.A. (N.S.) 586; Plumb v. Richmond Light & R. Co., 233 N.Y. 285, 135 N.E. 504, 25 A.L.R. 685; Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859; Sandler v. Garrison, 249 N.Y. 236, 164 N.E. 36. This is the theory adopted in the second Whitcher Case, 236 App.Div. 293, 25......
  • Stone v. Courtyard Management Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 22, 2003
    ...it justifies distinguishing the two in determining whether the exclusive control element has been satisfied. See Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859 (1925) (finding that a building owner who had leased an apartment to a tenant was not in exclusive control of the ceilings in the apa......
  • Cameron v. H. C. Bohack Co.
    • United States
    • New York Supreme Court — Appellate Division
    • May 8, 1967
    ...N.Y.S.2d 1002; see also Foltis Inc., v. City of New York, 287 N.Y. 108, 122, 38 N.E.2d 455, 463, 153 A.L.R. 1122, supra; Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859). We are of the further opinion that the plaintiff may not be said to have been contributorily negligent as a matter of law (......
  • Rogers v. Dorchester Associates
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 1972
    ...the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant. Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859. . . .' Actually, the theory of Res ipsa has been applied to elevator cases. See Smith v. Jay Apartments, 33 A.D.2d 624, 30......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT