#### Mary Perry, Respondent, *v.*Hudson and Manhattan Railroad Company, Appellant.

First Department,

July 10, 1913.

Master and servant — injury to scrubwoman by fall of elevator — evidence — when doctrine of res ipsa loquitur not applicable.

Where in an action by a scrubwoman in the employ of defendant to recover for injuries sustained while riding in one of defendant’s elevators, which descended with undue speed and bumped at the foot of the shaft, it appears that the accident might have been caused either by some defect in the mechanism or by the negligence of the elevatorman, a coservant of the plaintiff, and the plaintiff claims that the accident was caused by the breaking of the chain connecting the ear with the counterbalance, but there is uncontradicted evidence that the breaking of the chain could not have caused the car to fall, a recovery cannot be sustained by the application of the doctrine of *res ipsa loquitur.*Where the proof shows that the accident might have occurred from some cause other than the negligence of the defendant, the presumption of negligence does not arise and the doctrine of *res ipsa loquitur*cannot be applied.

Dowling-, J., dissented.

Appeal by the defendant, Hudson and Manhattan Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1912, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 19th day of April, 1912, denying defendant’s motion for a new trial.

*Walter Lester Glenney,*for the appellant.

*John J. Welsh,*for the respondent.

Scott, J.:

The plaintiff, a scrubwoman in the employ of defendant, was injured while riding in one of the elevators in defendant’s building. She, with a number of other scrubwomen, took the elevator car at the tenth floor to descend to the street level, and her injuries were due to the fact that the car came down with undue speed and bumped hard at the foot of the shaft. The car was operated by another employee of the defendant — a *791coservant of the plaintiff. It is apparent that there were two possible causes which might have caused the accident: *First,*some defect in the mechanism, or *second,*the negligence or inaptitude of the operator.

The plaintiff claims that it was the first of these causes which caused her injuries, and to support this claim offers proof that a chain connecting the car with a counterbalance broke. That the chain did break is clear, but the uncontradicted evidence is that the chain bore no part of the weight of the car, and that its breaking could not have caused the car to fall.

The plaintiff seeks to sustain her recovery by the application of the rule *res ipsa loquitur,*but it is evident that that rule can have no application to the present case. Aside from the still-mooted question whether that rule ever applies between employer and employee, and if it does apply, under what circumstances, there is a well-settled limitation upon the application of the rule in • any case, and that is, that if the proof shows that the accident might have occurred from some cause other than the negligence of the defendant the presumption of negligence does not arise, and the doctrine of *res ipsa loquitur*cannot properly be applied. *(Robinson*v. *Consolidated Gas Company,*194 N. Y. 37.) In this case the evidence shows that the accident might well have occurred (as it probably did) from the negligence of plaintiff’s coemployee, who had had but slight experience in running an elevator car, and who was carrying an unusually heavy load. The evidence of defendant’s negligence was quite insufficient to carry the case to the jury, and the complaint should have been dismissed.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin and Hotchkiss, JJ., concurred; Dowling, J., dissented.

Judgment and order reversed and new trial ordered, costs to appellant to abide event. Order to be settled on notice.