Atlas Supply Co. v. Colgate Contracting, Inc. , 187 N.Y.S.2d 383 ( 1959 )

Determination of the Appellate Term and the judgment of the Municipal Court unanimously reversed on the law and on the facts and complaint dismissed, with costs and disbursements to defendant-appellant in this court and $30 costs and disbursements in the Appellate Term. Plaintiff has failed to establish any negligence on the part of the defendant. The claim that the doctrine of res ipso loquitur is applicable is clearly without merit. This fire, of unexplained origin, could have been caused by any number of circumstances over which the defendant would have no control. Moreover the employees of the plaintiff were present at the scene when the fire originated and were in an equal if not even better position than defendant to explain its origin. It cannot be said, therefore, that it became the duty of defendant to account for this accident inasmuch as there could be no presumption of negligence on the facts of this ease. It may be noted that although there was evidence that the pit contained inflammable material the plaintiff’s witnesses testified that the fire did not occur in the pit. Accordingly, the complaint should have been dismissed. Concur — Rabin, J. P., M. M. Frank, Valente, McNally and Bastow, JJ.