Griffen v. Manice

• Decision Date: 12 March 1901
• Citation: 166 N.Y. 188,59 N.E. 925
• Parties: GRIFFEN v. MANICE.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 188

59 N.E. 925

GRIFFEN

v.MANICE.

Court of Appeals of New York.

March 12, 1901.

Appeal from supreme court, appellate division, First department.

Action by Anna S. Griffen, as administratrix of the estate of Walter H. Griffen, deceased, against William De Forest Manice. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, affirmed by the appellate division (62 N. Y. Supp. 364, 1138), defendant appeals. Reversed.

Bartlett and Martin, JJ., dissenting.

David B. Hill, for appellant.

Robert M. Boyd, Jr., for respondent.

CULLEN, J.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the defendant's negligence. On December 6, 1898, the defendant was the owner and in possession of an office building in the city of New York in which there was maintained and operated an elevator for carrying passengers to and from the several floors. The deceased was the secretary of the United States Fire Insurance Company, which had leased offices in the basement, and also in the seventh and eighth stories. On the day in question, after having attended a meeting of the directors of the company, held on the eighth story, he took the elevator to return to the basement. The evidence tends to show that the elevator car descended with unusual rapidity, and instead of stopping at the basement, which was the lowest floor, passed beyond until it struck the bumpers at the bottom of the shaft with such force as to rebound about 18 inches, and throw some of the occupants of the elevator down. Almost immediately thereafter the counterbalance weights, which move in a reverse direction to that of the car, and consist of pieces of iron, each from 40 to 60 pounds in weight, fell down the shaft, breaking through the top of the elevator car. One of them struck the plaintiff's intestate on the head, killing him instantly. The plaintiff recovered a verdict at the trial term, and the judgment entered thereon was unanimously affirmed by the appellate division. By leave of the appellate division, an appeal has been taken to this court.

As the decision below was unanimous, the exception to the denial of the defendant's motion to dismiss the complaint at the close of the evidence, and the question of the sufficiency of the evidence to support the verdict, cannot be argued in this court (Const. art. 6, § 9), and our review of the case must be confined to the correctness of the trial court in its rulings on the admission of evidence and its charge to the jury. We shall limit our discussion to the consideration of the three most important objections urged by the appellant against the recovery.

The trial court, over the appellant's exception, charged to the jury: ‘There is another rule which the plaintiff asks me to call to your attention, and I am going to call to your attention the rule that where an accident happens which, in the ordinary course of business, would not happen if the required degree of care was observed, the presumption is that such care was wanting; and if you find in this case that this accident, was one which, in the ordinary course of business, would not have happened if the required degree of care was observed, you have a right to presume that such care was wanting.’ It is insisted for the appellant that this instruction was erroneous, and that the jury was not authorized in this case to infer the existence of negligence from the accident alone. Primarily, it is argued that the principle which usually passes under the name of ‘res ipsa loquitur’ applies only to cases where the relation between the parties is the contractual one of carrier or bailee, or in which the party injured has been injured while on a public highway. While there are some expressions to be found in text-books and decisions which seem to support this claim, in my judgment it is unfounded, and the application of the principle depends on the circumstances and character of the occurrence, and not on the relation between the parties, except indirectly, so far as that relation defines the measure of duty imposed on the defendant. Writing of res ipsa loquitur, it is said in Shear. & R. Neg. § 59: ‘It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances, which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer or that it is necessary to offer.’ I think a single illustration will show the correctness of the view of the learned authors, that it is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. If a passenger in a car is injured by striking the seat in front of him, that, of itself, authorizes no inference of negligence. If it be shown, however, that he was precipitated against the seat by reason of the train coming in collision with another train, or in consequence of the car being derailed, the presumption of negligence arises. The res, therefore, includes the attending circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant's negligence. 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. Neither of these rules-that a fact may be proved by circumstantial evidence as well as by direct, and that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation-is confined to any particular class of cases, but they are general rules of evidence applicable wherever issues of fact are to be determined either in civil or criminal actions. In a prosecution for selling liquor without license, it is sufficient for the people to show the sale, leaving the defendant to show his license, if he has one. Potter v. Deyo, 19 Wend. 361. Recent possession of stolen goods warrants the inference that the possessor is the thief, both because experience shows that usually the party so in possession is the thief, and because the knowledge of how he came into possession of the goods is generally exclusively his own. In Breen v. Railroad Co., 109 N. Y. 297, 16 N. E. 60, it is said: ‘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.’ I can see no reason why the rule thus declared is not applicable to all cases, or why the probative force of the evidence depends on the relation of the parties. Of course, the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care; and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence. But the question in every case is the same whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue. In Mullen v. St. John, 57 N. Y. 567, it was held that the falling of an adjacent building into the street, whereby the plaintiff, traveling on the street, was injured, was prima facie evidence of negligence. In Piehl v. Railway Co., 30 App. Div. 166,51 N. Y. Supp. 755, affirmed in 162 N. Y. 617, 57 N. E. 1122, a fly wheel was disrupted, and a portion of it cast across the street into a saloon, killing the plaintiff's intestate. It was held that the mere bursting of the fly wheel was not sufficient to warrant an inference of negligence. These two cases proceeded on the differing views that this court took as to the nature of the respective accidents, not on the situation of the parties. I think it may be safely said that we would not have held the defendant liable in the latter case had Piehl been killed in the street, or, in the earlier case, the defendant exempt, had the plaintiff been injured while in a neighboring building. To put it tersely, the court thought that, in the absence of tempest or external violence, a building does not ordinarily fall without negligence; while it also thought that the disruption of a fly wheel proceeds so often from causes which science has been unable to discover, or against which art cannot guard, that negligence cannot be inferred from the occurrence alone. Authority is not wanting on the point. In Green v. Banta, 48 N. Y. Super. Ct. 156, a workman was injured by the breaking down of a scaffold. In a suit against his master the court charged: ‘The fact that the scaffold gave way is some evidence-it is what might be called prima facie evidence-of negligence on the part of the person or persons who were bound to provide a safe and proper scaffold.’ This charge was held correct by the general term of the superior court of the city of New York, and the decision affirmed by this court. 97 N. Y. 627. In Mulcairns v. City of Janesville, 67 Wis. 24, 29 N. W. 565, the fall of a wall was held presumptive evidence of negligence in a suit by a...