Smith v. Baltimore & Ohio Railroad

276 A.D.2d 985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1950
• Status: Published

Opinion

No opinion. Appeal from original judgment dismissed, without costs. Carswell, Acting P. J., Johnston, Sneed and Mac-Crate, JJ., concur; Wenzel, J., concurs in the dismissal of the appeal from the original judgment, but dissents as to the affirmance of the amended judgment and votes to reverse said judgment, insofar as it is in favor of plaintiff against appellant, and to dismiss the complaint as against appellant for the following reasons: (1) In this ease there is no proof of what caused the door to fall. Therefore, it cannot be determined whether it was a patent defect which might have been observable on reasonable examination. This not being a case involving the principle of res ipsa loquitur, the jury was left to guess as to how the accident came about. If the accident occurred because of a structural or a latent defect, no liability would attach to the appellant. (2) Plaintiff’s principal witness testified that upon examination of the fallen door after the accident, he found nothing wrong with it. He should not have been permitted to testify as to its condition an hour or more thereafter, unless it affirmatively appeared that the door had not been handled by others in the interim. Wenzel, J., is of the further opinion, if the complaint be not dismissed as against appellant, that then in any event on its cross complaint appellant is entitled to judgment over against the respondent railroad company and that it was error to dismiss such cross complaint. The freight car belonged to the railroad company. The duty of seeing that it was kept in a reasonably safe condition devolved upon it, if any one. Consequently, the negligence, if any, of the appellant, would necessarily be only passive.