Baroff v. Becker, 61-C-6.
| Decision Date | 30 June 1961 |
| Docket Number | No. 61-C-6.,61-C-6. |
| Citation | 197 F. Supp. 9 |
| Parties | Frieda BAROFF, Arthur Baroff and Philip Baroff, Plaintiffs, v. Barry BECKER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Dorsey & Burke, New York City, for plaintiffs. William P. Larsen, New York City, of counsel.
John P. Smith, New York City, for defendant. Alan W. Craig, New York City, of counsel.
In this diversity action for damages sustained as a result of defendant's car having skidded into the rear of plaintiffs' car while stationary, plaintiffs move for partial summary judgment, pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A., adjudicating the negligence of defendant.
It is true that the mere happening of an accident is not proof of negligence. It is also true that the doctrine of res ipsa loquitur is applied where "* * the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence * * *". Galbraith v. Busch, 1935, 267 N.Y. 230, 234, 196 N.E. 36, 38. In the application of this doctrine the courts of New York, following George Foltis, Inc. v. City of New York, 1941, 287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122, have held that res ipsa loquitur creates nothing more than a "permissive" inference of negligence and not a "compulsory" inference, and that this inference is to be drawn by the jury and not by the court. Under this theory, if it appears from plaintiff's evidence that there may be an explanation consistent with the absence of negligence, there is no duty on the defendant to come forward and offer such explanation. Lahr v. Tirrill, 1937, 274 N.Y. 112, 8 N.E.2d 298. In other words, the failure of defendant to explain the accident in such a case will not justify the grant of summary judgment or a directed verdict for plaintiffs.
In this connection the New York courts have also enunciated the principle that "* * * There may be cases where the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence. * * *" George Foltis, Inc. v. City of New York, supra, 287 N.Y. at page 121, 38 N.E.2d at page 462. Accordingly, in a case where the prima facie proof was so convincing that the inference of negligence, in the absence of an explanation, was "inescapable", the court directed summary judgment for plaintiff. Richard Equipment Corp. v. Manhattan Industrial Contracting Co., 1959, 9 A.D.2d 691, ...
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