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(182 N.Y.S.)

JENKS, P. J. I think that the defendant should hold the verdict. The action is for negligence. The plaintiff testifies that, after she had sat as a passenger in an adjustable seat of the defendant's car for 5 or 7 minutes, the seat collapsed. She testifies that she sat with her feet under that seat, so that it came down upon the calves of her legs. The negligence assigned is that this seat was "out of order and in a defective and worn condition; that the supports thereunder had not been properly placed where they belonged by the defendant." There was no testimony to support these allegations.

[1, 2] The defendant called the woman who had been the conductor of this car. Her testimony is as follows: The casualty happened on her third trip in that car. There had been no trouble with the seat theretofore. The seat had a support, with a peg at its end, for insertion in a socket in the floor of the car, and she had thus adjusted the seat. Thereafter, and up to the time the seat fell, others had sat in the seat in security; when she had adjusted the seat, she saw nothing defective in it, and after the collapse she examined the seat, and found neither defect nor flaw in it. She thereupon set it up again, so that it was used subsequently with safety by other passengers. Upon cross-examination this witness said that the seat must have "loosened up some way or other," and that the plaintiff was very stout, and got up two or three times to ask questions.

"Q. Could a person sit on this seat, weighing 150 pounds, and kick them out with her feet? A. Naturally, she would be able to lift it up with her weight, if she had the calf of her leg under it."

Although the plaintiff was recalled, she did not contradict this statement that she "got up two or three times."

The plaintiff relied wholly upon the rule of evidence known as res ipsa loquitur. There was no evidence that the seat was "in a defective and worn condition," and there was direct evidence to the contrary. The seat was "out of order" only after it collapsed. There was no evidence that the cause of the collapse was any defect or flaw or impairment of construction. Although the jury could have inferred that the collapse was attributable to the fact that the support at that time was not in its place, yet there was no evidence that the supports thereunder "had not been properly placed where they belonged by the defendant." The jury were not bound to infer that, because the seat collapsed, the supports had not been properly placed by the defendant, in face of the testimony of the conductor that she had adjusted it properly, and of her testimony, elicited on cross-examination, that the plaintiff "got up two or three times," and that such a person in such a position would be able to lift up the seat with the calf of her leg, and thus lift a support or the supports out of their sockets. If the jury, with belief of the circumstances, adopted this explanation, such explanation did not rest upon either the negation of a physical fact or the existence of a physical impossibility. See Fox v. Le Comte, 2 App. Div. 63, 37 N. Y. Supp. 316; affirmed on the opinion, 153 N. Y. 680, 48 N. E. 1104. If this explanation involved an impossibility, the plaintiff was bound to show it (Id.); but there was no evidence contradictory or contrary to this theory.

[3] The plaintiff failed to move for a direction of a verdict, and thus conceded that the evidence presented a question of fact for the jury. Grogan v. Brooklyn Heights R. R. Co., 107 App. Div. 254, 95 N. Y. Supp. 23. The learned and able court did not hand down an opinion, but, with characteristic care, expressed orally its reason for disturbance of the verdict. The court thought that there was prejudice, in that the jury believed that the doctor and the plaintiff were exaggerating the injuries. There is no possible indication of prejudice, outside of the fact that the verdict was for the defendant. Indeed, the court went on to declare that a verdict which found that the conductor had exercised reasonable care "would be against the weight of the evidence, because it happened from one of three things; it was never a proper appliance, or it was not set properly, or it was moved out by somebody." Of these "three things," as to the first there was no testimony that the seat was never a proper appliance, so that the reliance of the plaintiff upon the first thing rested solely upon the rule of res ipsa loquitur; as to the second, there was no testimony that the seat was not set properly, save that it collapsed, so that the reliance of the plaintiff is upon the mere fact of collapse-again invocation of the said rule; and, as to the third, there was no testimony to indicate that the defendant knew or legally should have known that the seat had been moved out by "somebody," so that it was unsafe for occupation by the plaintiff. There was no testimony that the defendant had moved it out, but testimony to the contrary by the defendant, that it had been properly adjusted and had been theretofore used without peril.

The case rested upon the collapse of the seat. Assume that the jury followed this third hypothesis stated by the learned court: Such course of the jury was not in disregard of any testimony that the appliance was not proper, or was not set properly, while the jury had before it testimony that the seat had been used in security on the first and second and third trips of this very car. Adopting, then, this third hypothesis, namely, that "somebody" moved the seat so that it fell, was the jury bound to hold the defendant negligent? Was it not justified in adopting the theory, elicited by the plaintiff, that she herself, a stout woman with the calves of her legs under the seat, disturbed it from its sockets by lifting it by her person as she got up therefrom several times? If so, was the defendant, in the exercise of due care, bound to provide against this result of such location by the passenger of her body and of such subsequent acts whereby she lifted the seat from its sockets? I think not.

[4] The conductor was not in the employ of the defendant when she testified; even if she had been, her credibility was for the jury. Connolly v. Central Vermont R. R. Co., 4 App. Div. 221, 38 N. Y. Supp. 587, affirmed 158 N. Y. 675, 52 N. E. 1124. There was no testimony against her testimony, for the case of the plaintiff rested upon the presumption afforded by this rule of evidence called res ipsa loquitur. There was nothing incredible in the conductor's testimony.

[5, 6] Despite the happening of the casualty, there still remained the burden upon the plaintiff to establish negligence; otherwise, the

(182 N.Y.S.)

defendant was an insurer, and it was not. The rule of res ipsa loquitur aids, but in itself does not inevitably accomplish; and the question for the jury was whether the plaintiff, with the advantage of the rule, had inculpated the defendant for the lack of due care under the circumstances. McPadden v. New York Cent. R. R. Co., 44 N. Y. 478, 4 Am. Rep. 705; Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 17 Am. Rep. 221; Thompson's Com. on Neg. vol. 6, p. 614. Even if, as the learned and able court conceded, the collapse of the seat might be attributed to the fact that "somebody" moved the seat, the jury might have concluded, either that the plaintiff herself, by her own acts, had moved it, as suggested by the testimony of the conductor, or that some other person had moved it, for whose act the defendant was not liable, or that in any event its displacement was not caused by the lack of due care on the part of the defendant. In Mieuli v. New York & Queens County Railway Co., 136 App. Div. 373, 120 N. Y. Supp. 1078, and in Grogan v. Brooklyn Heights R. R. Co., 107 App. Div. 254, 95 N. Y. Supp. 23, this court has declared beyond the necessity of repetition the rules which regulate the disturbance of a defendant's verdict. It must be remembered, also, that the question before the court did not involve any clash of witnesses called by the opposite parties.

I think the order must be reversed, with costs, and the verdict reinstated, with costs. All concur.

SLOMKA v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division. Second Department. May 7, 1920.)

Appeal from Special Term, Kings County.

Action by Adolph Slomka against the Nassau Electric Railroad Company. From an order setting aside a verdict for defendant, it appeals. Order reversed, and verdict reinstated.

Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ.

PER CURIAM. Order reversed, with costs, and verdict unanimously reinstated, with costs, on the authority of Matilda Slomka v. Nassau Electric Railroad Co., 191 App. Div. 727, 182 N. Y. Supp. 156, decided herewith.

PUBLICITY CLOCK CO., Inc., v. HOPKINSON THEATER CORPORATION. (Supreme Court, Appellate Term, First Department. May 13, 1920.) Damages 57-Good intent does not lessen damages for breach of contract. If there was a breach of contract by a defendant, plaintiff is entitled to just damages, even though the breach was not intentional.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Publicity Clock Company, Incorporated, against the Hopkinson Theater Corporation. From a judgment in its favor, plaintiff appeals. Judgment reversed, and new trial ordered.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

E. Louis Jacobs, of New York City (Yetta Y. Schenker, of New York City, of counsel), for appellant.

Cohen, Haas & Schimmel, of New York City (Isidore Cohen, of New York City, of counsel), for respondent.

PER CURIAM. There must be a new trial for the reason that the damages as awarded are against the weight of the evidence. Since the court below has found a breach of contract, the plaintiff is entitled to its just damages, even though the breach might be found not to be intentional.

Concerning the return of the chattels, there was lacking proof of any sufficient demand or injury to the chattels due to the fault of the defendant. It follows that the plaintiff, therefore, did not make out a case upon this record, entitling it to a judgment for the return of the chattels, and the judgment was erroneous in this respect also. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

PRINCE v. FINKELSTEIN.

(Supreme Court, Appellate Term, First Department. May 13, 1920.)

1. Pleading 369 (6) Cause of action on conversion held withdrawn by reply to motion for election.

Plaintiff withdrew any cause of action based on conversion; her counsel, at close of the case, on defendant moving that plaintiff elect on what theory she was bringing the action, replying: Negligence and breach of contract.

2. Bailment 32-Measure of damages for improper repair of coat difference in value before and after.

Measure of damages for improper repair of a coat is the difference between its value in the condition in which plaintiff delivered it to defendant to repair and its value as returned to plaintiff.

Appeal from Municipal Court, Borough of the Bronx, Second District.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

Action by Susie C. Prince against Benjamin Finkelstein. From a judgment for plaintiff, after trial before the court without a jury, defendant appeals. Reversed, and new trial ordered.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ.

Marro & Fortinash, of New York City (Pascal J. Fortinash, of New York City, of counsel), for appellant.

David Klein, of New York City, for respondent.

FINCH, J. The plaintiff left a fur coat with the defendant to be altered, for which work she agreed to pay $50. The plaintiff sent her daughter for the coat, who received and paid for the same. Subsequently the coat was returned by the plaintiff to the defendant; the plaintiff claiming that it was not her coat. Thereafter the plaintiff called for and accepted the coat from the defendant, and then inIstituted this action.

The complaint contained the one word, "Conversion." The bill of particulars furnished by the plaintiff set up that the cause of action for conversion was based upon the defendant "retaining the plaintiff's coat and returning an entirely different one to her. The value of the coat converted as aforesaid is $450." The bill of particulars further alleged that the cause of action for breach of contract is based upon the defendant breaking the contract, "in that he shortened the coat and did not do the work in a proper or workmanlike manner"; that "the difference between the value of the plaintiff's coat in the condition in which she gave it to the defendant and the value of the coat returned by the defendant to the plaintiff, $440"; that "the contract price of the work paid by the plaintiff to the defendant, $50"; and that "the value of the mink fur on the plaintiff's coat which the defendant failed to return to her, and the value of that part of the otter fur supplied by the plaintiff and which was not required in making the collar, $85."

[1, 2] The court awarded judgment to the plaintiff in the sum of $350 and costs. At the close of the entire case, the defendant's counsel moved that the plaintiff elect upon what theory she was bringing the action, to which plaintiff's counsel replied, "Negligence and breach of contract." The plaintiff thus withdrew any cause of action based upon conversion. As a result we have a judgment against the defendant for $350 for not performing his work properly upon a coat which had been worn four years and which the daughter testified that her mother, the owner, said was worth about $350 when new. The only other testimony as to the value of the coat was that of the mother and daughter, who testified that the defendant said the coat was worth $450 about the time it was delivered to him. There was no evidence as to the value of the coat after the same was returned to the plaintiff. Hence there must be a new trial, as it is well settled that the proper measure of damage is the difference between the value of the coat in the condition in which the plaintiff 182 N.Y.S.-11

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