Davis v. Goldsmith
| Decision Date | 07 May 1963 |
| Citation | 19 A.D.2d 514,240 N.Y.S.2d 148 |
| Parties | Freda DAVIS and Benne Davis, Plaintiffs-Respondents, v. Thelma GOLDSMITH, doing business as Cozy Corner Luncheon, The Coca-Cola Company, Defendants-Appellants-Respondents, and S. W. Aaron Sign Co., Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
H. M. Harkavy, B. Meyerson, New York City, for defendants-appellants-respondents.
A. S. Juline, New York City, for plaintiffs-respondents.
W. F. McNulty, New York City, for defendant-respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, EAGER and STEUER, JJ.
Judgment in favor of plaintiffs in this personal injury negligence action against defendants Goldsmith and The Coca-Cola Company and in favor of defendants on the cross-complaints modified, on the law, to the extent of reversing so much of the judgment as is in favor of plaintiffs, the verdict vacated, and a new trial granted with costs to abide the event; and the judgment is otherwise affirmed with costs to defendant W. W. Aaron Sign Co. against defendants Goldsmith and Coca-Cola and without costs to defendant Coca-Cola on defendant Goldsmith's cross-complaint against it. The trial court, in charging upon the applicability of the doctrine of res ipsa loquitur, incorrectly stated that defendants Goldsmith and Coca-Cola had, in effect, a burden to rebut the inference or presumption established by plaintiff's proof. The rule is now well settled that when plaintiff, by his proof, establishes the applicability of the doctrine plaintiff is entitled to go to the jury, but there is no burden of rebuttal, albeit a prima facie case is made out (George Foltis, Inc. v. City of New York, 287 N.Y. 108, 118, 38 N.E.2d 455, 461, 153 A.L.R. 1122; Prosser, Torts [2d ed.] § 43). Since defendants may have been prejudiced, the error may not be disregarded, and a new trial is required. It is also noted that in any event, the award of damages was grossly excessive. Defendants Goldsmith and Coca-Cola appeal from the dismissal of their cross-complaints against the S. W. Aaron Sign Co. In a proper case liability may attach for the improper installation of a sign, which, to some extent, may be inferred from the falling of the sign. Sufficient evidence, however, was not adduced to narrow the cause of the falling to improper installation as distinguished from the need for current maintenance. (McNulty v. Ludwig & Co., 153 App.Div. 206, 213-214, 138 N.Y.S. 84, 90-91.) For a different reason, defendant Goldsmith's cross-complaint against defendant Coca-Cola was also properly dismissed. The uncontroverted testimony was that the sign was installed by Coca-Cola without any arrangement or agreement, oral or written, between defendant Goldsmith and the Company. Nor was there any testimony of inspection or general maintenance. There was some dubious testimony by defendant Goldsmith's husband to the effect that Coca-Cola, two or three times a year, sent someone around to polish the sign and, six or seven times a year, to look at it. This falls far short of establishing a duty as between the joint tortfeasors to maintain the sign, and...
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