(dissenting). We must, of course, take plaintiff’s testimony as true, for our present purposes.
He took down the receiver of a telephone instrument which defendant owned and operated, and which it was obligated to maintain and keep in safe repair. Immediately he was “ knocked out ”, and later felt various pains and weaknesses. He did not say that a powerful wave of electricity knocked him out, but if he had, that would have been his mere conclusion. He did not say it was an electric shock — how could he? What he said, in various forms of inartistic but clear expression, was that his picking up of the receiver was followed, instantaneously, by his being “ knocked out ”, that is, knocked unconscious. *27That was, as I see it, a complete basis for application of res ipso loquitur.
Neither his failure to consult a physician, nor the inconclusiveness of the testimony of the physician-expert-witness who testified for him, destroyed the prima facie case, any more than did the dubiousness, if such it was, of plaintiff’s own version of the occurrence. He did testify that he was knocked unconscious, under circumstances which, at the very least, authorized an inference that the cause of the trauma was something wrong with defendant’s telephone instrument or lines. We could not hold, as matter of law, that such a thing was incredible or impossible. That was for defendant to prove, if provable. Apparently such things have happened before (see Hanaman v. New York Tel. Co., 278 App. Div. 875; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241).
The order should be affirmed, with costs, and judgment absolute ordered against defendant, on the stipulation.
Lewis, Conway and Fulo, JJ., concur with Froessel, ,TJ.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Dye, J., concur.
Order reversed, etc.