I dissent and vote to affirm the judgment and orders under review.
I am unable to find in this record any proof of defendant’s negligence. The doctrine of res ipsa loquitor is not applicable. In reversing the determination of the court below this court is doing precisely what the Trial Judge properly refused to permit the jury to do — namely, indulge in speculation and surmise.
Hill, P. J., Brewster and Lawrence, JJ., concur with Foster, J.; Heffernan, J., dissents in memorandum.
Judgment reversed, complaint reinstated and a new trial directed, with costs to abide the event.