#### Dora Goldstein, Appellant, *v.*Etta Levy, Respondent.

(Supreme Court, Appellate Term,

December, 1911.)

Negligence: Acts or omissions constituting negligence — Use of land, buildings and other structures — Licensees: Actions — Evidence — Presumptions and burden of proof-Presumption of negligence from happening of accident — Sufficiency of proof to rebut the presumption.

Where one goes to a music hall to listen to a performance and pays his admission, and a shade upon a large chandelier breaks and part of it falls on him and injures him, the rule *res ipsa, loquitur*is applicable; and the burden is upon the defendant who owns and controls the music hall to explain the accident in such a manner as to overcome the presumption of negligence raised by the facts.

In such a case, evidence introduced by the defendant tending to show that inspections were carefully and regularly made is insufficient to establish that the accident itself was not caused by his negligence.

The plaintiff appeals from an order of the Municipal Court of. the city of blew York, borough of Manhattan, second district, setting aside the verdict of a jury rendered in the plaintiff’s favor for $200.

Breitbart & Breitbart (Bernard Breitbart, of counsel), for appellant.

E. B. Wilson, for respondent.

Seabury, J.

This action was brought to recover' damages for personal injuries alleged to have been caused by the defendant’s negligence. The plaintiff purchased a ticket and went into a music hall owned and controlled hv the defendant. Above the place where the plaintiff was seated there was suspended from the dome of the hall a chandelier containing about twenty-one electric lights used for lighting- the ball *464in order, that the patrons might witness the performance. A shade surrounding one of these lights broke, and a piece of it fell upon the plaintiff, causing the injuries complained of. The accident occurred on a Thursday and the defendant proved that, on the previous Monday, she had the chandelier and shades examined by an electrician employed for that purpose; also that the chandelier and shade had been, in like manner, inspected every week prior to the accident; and for the period of six years prior to the accident no similar accident occurred and the globes had never'been discovered to be defective or in a dangerous condition. The defendant, however, offered no evidence to explain the cause of the accident.

In our opinion the facts above recited called for the application of the rule *res ipsa loquitur,*and the burden was upon the defendant to explain the accident in such a manner as to overcome the presumption of negligence raised by the plaintiff’s proof. This the defendant did not do. Evidence tending to show that inspections were carefully and regularly made is insufficient to establish that the accident itself was not caused by the defendant’s negligence.

The circumstances and character of the occurrence were such as to call for the application of the doctrine of *res ipsa loquitur.*The accident was unusual. The plaintiff could not be expected to define its exact cause. If the inspections which the defendant claimed were made had been carefully made, it is not inconceivable that the defect which caused the shade to fall might have been discovered. If one may be held liable for the fall of a wall upon a pedestrian (Mullen v. St. John, 57 N. Y. 567), or an innkeeper for the fall of plaster from a ceiling upon a guest (Morris v. Zimmerman, 138 App. Div. 114), we can see no good reason why the same principle which was applied in those cases should not be held applicable here.

The facts proved by the plaintiff established a *prima facie*case, which was put in issue by the proof of care which the defendant claims she exercised. This issue was properly submitted to the jury for their determination; and, in our opinion, the verdict of the jury in favor of the plaintiff can*465not properly be held to be contrary to the evidence or the law. In our judgment the learned trial court erred in setting aside the verdict.

Guy and Cohalan, JJ., concur.

Order reversed, with costs, and verdict reinstated with costs to appellant.