Glassman v. Surpless

Gildersleeve, J. (concurring).

I concur in the result reached by my associate Hr. Justice Erlanger.

As the complaint was dismissed upon plaintiff’s evidence alone, such evidence is not only entitled to belief, but also to such favorable inferences as can reasonably be drawn therefrom. The undisputed facts are as follows, viz: Plaintiff was .employed by a tenant of defendants. She lawfully entered the passenger elevator in defendants’ building, which was entirely under the management and control of defendants’ servants. For some unexplained reason the elevator made a sudden drop from the "tenth floor of said building to a point between the fourth and fifth floors, where it as suddenly stopped short, thereby causing serious injuries to the plaintiff. The latter’s counsel sought to show, by one of the employers of plaintiff and a tenant in said building, as we have seen, that a similar accident to this elevator occurred about three months prior to the accident in question; but the court refused to admit such evidence, to which ruling exception was taken. The evidence was admissible as in some degree tending to show the probability of the dangerous condition of the elevator as well as notice of such danger to defendants. It seems to us also that the facts disclosed called upon the defendants for some explanation. The reasonable conclusion from the evidence adduced supports'the allegations in the complaint that the elevator car was in bad condition and that the employee who operated the car failed in his duty by not properly controlling the lever of the car. We think it was error to dismiss the complaint.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.