Levin v. New York Central & Hudson River Railroad , 133 N.Y.S. 467 ( 1912 )

HOTCHKISS, J.

The action is for damages sustained from an explosion at the New York City terminus of the defendant, known as the “Grand Central Yards,” on December 19, 1910. The substantial facts proved, including the allegations admitted by the pleadings, were as follows:

Defendant maintained its yards, including tracks with electric rails, about 150 feet from plaintiffs’ store. In the yards was a tank containing combustible gas, that would explode if in contact with fire or sparks. The yards are in the very heart of the city, and are surrounded by buildings occupied as dwellings or for business purposes. An explosion occurred in the yards on December 19, 1910, causing stones and other substances to be thrown against the windows of plaintiffs’ store, and the concussion of the explosion shattered the windows of the store, and glassware contained therein, to the plaintiffs’ damage in a substantial amount. The respondent contends that no proof was offered of the cause or of the circumstances prior to and attending the explosion. Such evidence of cause is in fact lacking; but it must be taken as proved that the explosion occurred in the tank containing the combustible gas, because there is testimony from which such fact may be inferred, and on the trial the defendant seems to have acquiesced in the claim that the explosion had its origin in the tank.

[1] At the close of the case, defendant moved to dismiss the complaint for failure of piroof, and decision was reserved, whereupon defendant rested. Thereupon plaintiff moved for judgment upon the record, and the court again reserved its decision. The record of the judgment reads as follows: “Judgment for the defendant after trial.” I assume, therefore, that the judgment was not one of non-suit merely, but on the merits. Neuberger v. Keim, 134 N. Y. 35, 31 N. E. 268.

[2,3] The appellants base their right to recover on two grounds: (1) That the tank was a nuisance, for the damages resulting from which defendant was liable, regardless of negligence; and (2) the fact that the explosion occurred raises a presumption of negligence, under the res ipsa loquitur doctrine. Although the record is exceedingly meager as to the circumstances of the explosion, I think there was sufficient, as to the first ground, to bring the case within Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, and that as to the second ground Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630, is controlling. If I am correct in these views, the judgment was against the weight of evidence, and should bé reversed.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event. All concur.