(dissenting in part):
It seems to me that no case was made out against the defendants Lucey. Assuming that the Luceys as landlords could be held responsible if there was proof of negligence on their part próxima tely causing or helping to cause the accident, I fail to find any proof in the case which shows that the landlords were guilty of any such negligence. The testimony does not show just how the accident occurred. There are several theories as to how it might have occurred, but to hold the landlords responsible it is necessary to find some proof tending to show that the accident occurred in a way for which the landlord was próxima tely responsible. The plaintiff has failed to meet the burden of proof against the defendants Lucey in that respect. So far as the tenants are concerned the doctrine of res ipsa loquitur could apply, but that doctrine cannot apply to a landlord who is not in possession and control of the premises at the time. The theory of that doctrine is that the person in control is presumed to be in a position to explain. In the case of Francey v. Rutland R. R. Co. (222 N. Y. 482, 484) the Court of Appeals explained the doctrine of res ipsa loquitur and stated the rule as follows: “ ‘ When the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.’ ” The premises were not under the control of the defendants Lucey at the time and the accident might well have happened, according to the proof, by reason of the negligent maintenance or operation of the elevator by the tenants. According to the testimony it is just as probable that the accident happened by reason of such maintenance or operation as that the elevator was knowingly left in an improper condition by the landlords for the use intended when they leased the premises. “ When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must fail also if it is just as probable that they were caused by the one as by the other, as the plaintiff is bound to make out his ease by the preponderance of evidence.” (Searles v. Manhattan R. Co., 101 N. Y. 661; Ruppert v. Brooklyn Heights R. R. Co., 154 id. 90, 94; Lopez v. Campbell, 163 id. 340, 347; 2 Thomas Neg. [2d ed.] 1115,)
Assuming that a fair inference might be drawn from the testimony to the effect that the owners of the building leased it with *246knowledge, actual or constructive,, that it was in a defective and unsafe condition for the use intended, it was necessary for the plaintiff to show that such defects were the proximate cause of the accident and the court so charged. The question is whether the evidence fairly and reasonably excludes any other hypothesis. The evidence presented to the jury under the theory of the plaintiff’s case did not definitely purport to fix the cause of the accident. One theory was that the elevator had not been built to guarantee the carriage of such a heavy car as this one was and that the overloading of the elevator over a long period of time without structural changes had weakened certain parts of the elevator and warped its frame somewhat. It was claimed that it had weakened the guides erected at the sides of the elevator which were used to steady the movements of the elevator in the well and prevent it from striking obstructions and also to furnish means for the operation of certain safety clamps intended to operate upon these guides as a brake in the event that the cables of the elevator should break. There was some evidence on the part of the plaintiff that a single cable broke which was spliced the following morning. It was the undisputed proof, however, of one of the plaintiff’s own expert witnesses that the elevator would not fall unless both of the lifting cables broke; that the elevator might coast or run down to the bottom if something happened to the brake or a fuse burned out destroying the power, or the belts were not properly shifted to the driving pulleys. This witness also said that the safety clamps operating on the guide posts would not operate unless both of the lifting cables broke. There was further evidence by another expert witness for the plaintiff that he examined these guideposts after the accident and found no evidence that these clamps had operated at the time of the accident. He says that the guide posts did not give evidence of having been chewed or scraped by the operation of these clamps. There was no occasion for their operation because only one of the lifting cables broke. There is further proof to sustain the theory that the cables did not break letting the car drop to the bottom of the elevator well. The plaintiff’s own expert says that unless both cables broke, the car would in case of some other defect simply coast or ran down to the bottom with increasing momentum. Apparently the latter is just what happened according to the plaintiff’s own testimony and that of his -witnesses. The plaintiff says that wheh it slipped the first time it “ just eased down, just sagged down for eight or ten inches.” And he says, speaking of the second time when it went two feet below the floor: “ I have no recollection of it having gained any great momentum. I think it went down fairly easy.” Stedman, the owner of the automobile, *247says it “ sagged ” the first time and that it “ sagged ” again the second time and that the third time when it went to the bottom of the pit, “ first it moved very slowly and then got up quite a lot of momentum for a short distance.” Moreover the attorney for the plaintiff stated during the course of the trial that there was no evidence that a broken cable caused the accident. We must look for proof of the cause of the accident elsewhere than the breaking of a cable.
It was the theory of the plaintiff that a belt had slipped off and that the operator of the elevator went to the basement where he stayed ten or fifteen minutes and then returned and after manipulating the cable the second time succeeded in raising the elevator slightly above the level of the main floor; that the elevator then sagged a distance of two feet below the floor and after standing there for a few seconds or a few minutes, it went to the bottom first slowly and then with increasing momentum going a distance of about eighteen feet. Campbell, the former tenant and who was a witness for the plaintiff, testified that the pulling of the hand cable in operating the elevator had a twofold effect. It operated to release the brake and to shift a belt to an operating pulley. He says: “You can release the brake without getting a full grip on the pulley with the belt.” He also says that if you do not get your, belt on, “ the elevator will fall.” Irwin, the plaintiff’s expert, also says that in operating a hand cable you can loosen the brake without getting the belt clear on. “You could get your belt over just a part of the way * * * a very small part of the way.” He says there should be a lock nut on a bolt used to keep a spring adjustment on the brakes in proper position; that if you do not have this lock nut the spring will not hold in position and the brake will work loose; that the braking device if properly set for the load to be carried and kept set was a proper device but that if the nut comes loose the brake will not work properly and the car will run away. The plaintiff’s witness McDougall, also an expert on elevators, was sent to the garage a couple of days after the accident to examine it and he found that “ there had been several full turns of the adjustment nut taken on the brake band bolt that answered the purpose of tightening the band on the pulley, the brake pulley,” and he said that he could tell “ by looking at those turns ” that the turns had been made “ immediately prior ” to his getting there — "a very recent time ” prior to his inspection. The defendants’ witnesses also explained the operation of the elevator and agreed with the plaintiff’s experts that if the operator shifts the hand cable but not far enough to draw the belt upon the operating pulley, the brakes would be released; and lacking the power to overcome *248the load on the elevator, the elevator would go down with increasing speed as it gathered momentum. The defendants’ experts also explained the operation of the brakes and agreed with the plaintiff’s experts that if the adjustment nut was loosened the car would settle and run down. The defendants’ expert said that if the elevator settled eight or ten inches after a stop it could only be due to the brake not holding or to not being fully applied; that if it then started toward the bottom that would show that the brake had been released and that the driving belt was not sufficiently thrown onto the driving pulley to control the action of the machine and that the load had “ overhauled the machine and run down.”
Thus we have a distinct theory of the plaintiff borne out by the testimony of the defendants’ experts and as fair and reasonable a theory as was presented by the case that this elevator could have settled and finally run to the bottom because the operator had not sufficiently thrown the belt upon the driving pulley and that the elevator was thus inefficiently supported by the machinery which ran it, and it settled back upon insufficient brakes which were rendered insufficient either because of their partial release by the operator or a lack of proper adjustment of the spring upon the brake, or both. There was some testimony that a plate in another safety device was found broken after the accident, but under the ‘testimony there was a lack of proof that the breaking of this plate could have caused the accident. There was uniformity of proof that this break could be accounted for by the falling of the elevator as the result of the accident and not as one of the causes. The plaintiff’s own expert testified that if the car coasted down and struck the foot of the shaft quite often that would break this safety device.
Since it is just as probable that the damages were caused by improper brake adjustment or the improper operation of the elevator, for neither of which the defendant owners could be held liable, as that the damages would not have occurred if the elevator had been of sufficient carrying capacity and fit for the use intended, the jury should not have been permitted to speculate upon this question so far as the defendant owners were concerned.
I vote for a reversal and for a new trial so far as the judgment against the defendants Lucey is concerned. Otherwise, I concur in the affirmance.
Judgment and order affirmed, with costs.