(dissenting in part). Plaintiff was injured when his foot became caught in a space between the step and side of an escalator at the Bowling Green station of the IRT subway. The case was submitted to the jury with a res ipsa loquitur charge that negligence of the defendant could be inferred from the mere presence of the space or gap.
The inference of negligence on the part of defendant was not the only one which could fairly and reasonably be drawn from the evidence, and the trial court, therefore, improperly charged res ipsa loquitur. (See, Feblot v New York Times Co., 32 NY2d 486.) The jury reasonably could have found, based upon testimony of both plaintiff and his expert, that the accident happened because plaintiff put his foot, covered with a soft, rubber overshoe, dangerously close to the side of the escalator, where it became caught.
In addition, although plaintiff asserts that the space or gap existed because of defendant’s improper maintenance and failure to properly inspect the escalator, plaintiff offered no proof as to defendant’s inspection and maintenance procedures. Testimony by an employee of defendant was to the effect that a gap could have been caused by vandalism rather than by improper maintenance. Defendant supported its view by furnishing verification evidence that the escalator was maintained and inspected on three occasions in the week before the accident.
It has been said that the doctrine of res ipsa loquitur "allowing such an inference cannot be applied if a plaintiff’s damages can be accounted for on any reasonable grounds other than the defendant’s negligence”. (Pipe Welding Supply Co. v Haskell, Conner & Frost, 96 AD2d 29, 32, affd 61 NY2d 884.) Here, as noted, plaintiff’s fall could have been caused by a number of factors over which defendant had no control. Thus, plaintiff himself testified he didn’t know what caused his foot to become caught and offered no evidence that the two-inch gap was the type of defect that would not occur in the absence of defendant’s riegligence. (See, Dermatossian v New York City Tr. Auth., 67 NY2d 219.)
Just recently, in that case, the Court of Appeals reiterated the time-tested formulation for invoking the doctrine of res *369ipsa loquitur: "In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: ' "(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” ’ (Corcoran v Banner Super Market, 19 NY2d 425, 430, mod on remittitur 21 NY2d 793 [quoting from Prosser, Torts § 39, at 218 (3d ed)]).” (Dermatossian v New York City Tr. Auth., supra, p 226.)
This doctrine is "nothing more than a reasonable conclusion, from the circumstances of an unusual accident, that it was probably the defendant’s fault.” (Prosser and Keeton, Torts § 39, at 243 [5th ed 1984].) Where "other causes are in the first instance equally probable, there must be evidence which will permit the jury to eliminate them.” (Id., at 249.) "It is never enough for the plaintiff to prove merely that the plaintiff has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant.” (Id., at 248.) Since the evidence in the case now under consideration has shown that acts of the plaintiff or a third party may reasonably be considered to have caused the alleged injury to the plaintiff, the prerequisite for a charge of res ipsa loquitur has not been met.
Dermatossian (supra) involved a res ipsa situation which is closely analogous to the one herein. Plaintiff, in that case, struck his head on a defective grab bar or handle as he stood to leave the defendant’s bus. In Dermatossian, unlike this case, no proof of negligence was adduced and the court submitted it to the jury solely on a res ipsa theory of liability over defendant’s objection.
Judge Hancock, Jr., writing for a unanimous court, in analyzing the res ipsa doctrine, stated that its "purpose is simply to eliminate within reason all explanations for the injury other than the defendant’s negligence”. (Dermatossian v New York City Tr. Auth., supra, at p 227.) Judge Hancock, Jr., further observed that "[t]he requirement does not mean that 'the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant’s door’ ” (supra, at p 227, quoting from 2 Harper and James, Torts § 19.7, at 1086).
*370Thus, the Court of Appeals held that "plaintiff did not establish control of the grab handle by defendant of sufficient exclusivity to fairly rule out the chance that the defect in the handle was caused by some agency other than defendant’s negligence” (supra, at p 228). It added: "The proof did not adequately exclude the chance that the handle had been damaged by one or more of defendant’s passengers who were invited to use it. It is this crucial fact — that the grab handle was continuously available for use by defendant’s passengers —which distinguishes the case at bar from Bressler v New York R.T. Corp. (277 NY 200), cited by plaintiff, where it could not be shown that the subway train window which caused the injury was used or under the control of someone other than the defendant” (supra, at p 228).
In Dermatossian, the Court of Appeals found plaintiff’s case insufficient for the invocation of res ipsa since "[t]he proof did not adequately exclude the chance that the handle had been damaged by one or more of defendant’s passengers who were invited to use it” (supra, at p 228).
Likewise, in the instant case, plaintiff offered no proof to exclude the possibility that the gap between the step and skirt was caused by one or more of the thousands of passengers who used the escalator that morning. As in Dermatossian, therefore, plaintiff’s proof failed "to eliminate within reason all explanations for the injury other than the defendant’s negligence” (supra, at p 227).
Plaintiff played a significant part in the way the escalator functioned on that occasion. It seems noteworthy that his own expert testified the accident occurred, in his opinion, due to "the soft material of the Totes” being caught in the gap between the step and the skirt. Plaintiff could not explain how his foot got caught in the gap, and an inspection of the escalator immediately following the accident found it in good working order. This control and voluntary action on the part of plaintiff, in placing his foot, wearing a soft overshoe dangerously close to the clearance, was more than enough to negate the inference that the defendant alone was responsible for the accident. Accordingly, the Trial Judge should have rejected a res ipsa loquitur charge. (See, Feblot v New York Times Co., supra.)
Consequently, the Trial Judge erred when, over the defendant’s objection, he instructed the jury: "The plaintiff does not have to prove, members of the jury, what caused the gap or *371opening to be there between the step and the side rail. He does, however, have to prove to your satisfaction that there was a gap into which his shoe or foot became lodged. If he does prove the fact of the gap existing in the manner that he said, you may infer that the defendant negligently maintained the escalator in question.”
The conclusion herein is not predicated on the assumption that any contribution to the occurrence by the plaintiff precludes, as a matter of law, the applicability of the res ipsa doctrine. Nor does it rest on a resurrection of the doctrine that the contributory negligence of the plaintiff, no matter how slight, can defeat a recovery for the plaintiff. Moreover, the correctness or incorrectness of the Judge’s charge of res ipsa is not dependent on the jury’s finding that the plaintiff contributed 25% of the fault in the happening of the event which injured him.
Usually, the function of the Judge in a case heard by a jury is mainly to decide questions of law. However, frequently the court is required to resolve certain issues of fact in order to decide whether, or how an issue is to be submitted to the jury. In a negligence case, if reasonable persons can differ as to the conclusions to be drawn, res ipsa is not appropriate, although some facts might warrant submission to the jury on the traditional theory of negligence.
It is not necessary for this court to delve into the jurisprudential question of the relationship between a jury allocation of comparative negligence and res ipsa loquitur. This appeal is concerned rather with the Judge’s instructions to the jury before the case is submitted to them for their deliberation. It is clear that the Trial Judge heard a substantial amount of testimony which presented serious questions as to whether the defendant, the plaintiff or a third party was responsible for the occurrence which resulted in the alleged injury to the plaintiff. This is verified by the jury’s verdict, although we do not rely on it, but rather on the evidence which was before the Judge prior to the jury determination.
I agree with the majority that the Trial Judge made another significant error which may well have affected the jury’s award of damages. The failure by the court to strike the testimony of plaintiff’s medical witness, Dr. Simmons, as to a radiologist’s report, when the X rays themselves were not admitted into evidence, was erroneous. Opinion evidence must be based upon facts in the record or personally known to the witness. (Hambsch v New York City Tr. Auth., 63 NY2d 723.)
*372Oliver Wendell Holmes, in 1880, once predicted that ultimately the government would provide a mantle to protect Americans from all the vicissitudes of catastrophic events. This still seems to be in the distant and unpredictable future. Nevertheless, the law of torts, faced with the complexity of twentieth century technology and the ambiguity as to the assignment and perhaps meaning of fault, yet with the imperative need to spread the cost of devastating injuries so that they could be borne most reasonably and equitably, has invented workers’ compensation, products liability and similar concepts. The hoary doctrine of res ipsa loquitur seems to be a rudimentary and perhaps vestigal accommodation to this sort of problem. For the most part, however, the traditional tort remedy of common-law negligence, with all its technical requirements, has persisted until a better solution is provided by the high court or the Legislature and we are bound to follow it.
Kupferman, J. P., and Kassal, J., concur with Wallach, J.; Asch and Carro, JJ., dissent in part in an opinion by Asch, J.
Judgment, Supreme Court, New York County, entered on April 4, 1985, modified, on the law, only to the extent of remanding the matter for a new trial confined solely to the quantum of damages, and as so modified, affirmed, without costs and without disbursements.