Tyndall v. New York Central & Hudson River Railroad , 141 N.Y.S. 879 ( 1913 )

Woodward, J. (concurring):

I concur with Mr. Justice Howard.

The only tenable theory of the case was not submitted to the jury. The accident, which was one which does not occur under ordinary circumstances, was due wholly to operations under the control of the defendant, and the simple statement of the facts, supported by evidence, was sufficient to send the case to the jury, after the defendant had had an opportunity to present an explanation, but' the case, from the drawing of the pleadings to the final submission, appears to have been conducted without any clear idea of the result to be accomplished, and it has resulted in a situation which can only be met by sending the case back for a new trial. If the accident resulted from the manner of the loading, the defendant was not liable. If, on the other hand, as the evidence in the case tended to show, the accident resulted from defects in the car door or its fastenings, which a reasonable and proper inspection should have disclosed to the defendant, the doctrine of res ipsa loquitur would apply, and it would call upon the defendant for explanation, and this explanation with the attendant circumstances would be proper matter for the jury to consider.

For these reasons concurrence in the affirmance of the order seems to be necessary.

Order affirmed, without costs.