(dissenting). The principal question presented is whether reversible error was committed by reason of the court’s instructions to the jury. Considering all the circumstances and taking the charge as a whole, we find no such error.
By its final admonition that plaintiff might not recover any damages if she had attempted to start the elevator downward, the trial court made it clear that the other issues concerning negligence were to be considered by the jury only in the event the accident happened by reason of some movement of the elevator not induced by any act of plaintiff occurring while plaintiff was attempting to step from the stationary vehicle. We recognize, of course, that under the law of this State the rule of res ipsa loquitur requires that the agency which produces the injury must be within the exclusive possession, control and oversight of the person charged with negli*384gence. (Slater v. Barnes, 241 N. Y. 284.) We think that such exclusive control by defendant existed if the accident happened as plaintiff contended, while she was leaving the standing vehicle. In Gustavson v. Thomas (227 App. Div. 303) we applied the rule of res ipsa loquitur to an accident occurring in connection with an automatic elevator. Further, we find that refusal of defendant’s request to charge presented no reversible error, in view of the evidence concerning the various methods of mechanically controlling the movement of the elevator, and the failure of defendant’s counsel to limit bis request by pointing out that he referred to absence of exclusive control by defendant during the time when plaintiff was actually operating it.
The judgment should be affirmed, with costs.
Dore, J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.