Wurf v. Mulrain , 171 N.Y.S.2d 794 ( 1958 )

Judgment, in favor of plaintiff after nonjury trial, unanimously reversed on the law and on the facts and a new trial ordered, with costs to appellants to abide the event. Plaintiff to sustain her recovery relies upon the rule of res ipsa loquitur. When that rule is applied, however, the burden of showing that the injury is due to the negligence of the defendant rests on the plaintiff (George Foltis, Inc. v. City of New York, 287 N. Y. 108, 118). In other words, “ All that the doctrine accomplishes is that when the surrounding circumstances have been sufficiently proven, a prima facie case is presented and the defendant is required to come forward with evidence explaining the event and disproving the negligence. If a satisfactory explanation is offered by the defendant, the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance of evidence in favor of plaintiff's contention.” (1 Warren’s New York Negligence, p. 106.) Examining the record in the light of this rule, we find no evidence by plaintiff to rebut the substantial proof of the defendants that an unknown third party came in contact with the glass wall causing it to break with the resulting injuries to the plaintiff. Accordingly, on the facts and on the law and in the interests of justice there should be a new trial.

Concur — Rabin, J. P., Yalente, McNally, Stevens and Bastow, JJ.