Keber v. Central Brewing Co. , 150 N.Y.S. 986 ( 1915 )

LEHMAN, J.

The plaintiff has recovered a judgment for damages caused to the stoop of his house by an automobile truck owned by the defendant. The plaintiff produced several witnesses who testified that the defendant’s truck, loaded with beer kegs, came down the street, which is a somewhat steep incline, and ran over the sidewalk into plaintiff’s stoop. No chauffeur was upon the truck at the time of the accident.

[ 1 ] There is no dispute as to these facts, and the 'plaintiff contends that they are sufficient to establish a prima facie case of negligence against the defendant. In considering whether these facts are sufficient to establish such a case, it must be remembered that it has been held that where an automobile is left in a position where it cannot start of itself, but requires the willful act of a third person to set it in motion, no negligence can be predicated against the owner of the automobile from the fact that he failed to take precautions against the interference of a third person. Vincent v. Crandall & Godley Co., 131 App. Div. 200, 115 N. Y. Supp. 600, and cases there cited.

[2] In the present case, none of the plaintiff’s witnesses saw the automobile when it started on its career down the hill, and the question, therefore, raised by this appeal, is whether the circumstances surrounding the accident fairly raise an inference that the automobile was negligently left in such a position that it started down hill through the force of gravity. The defendant’s chauffeur testified that by arrangement of the brakes, the steering wheel, and the controller the automobile was placed in such a position that it could not run down hill without outside interference, and he produced a boy who testified that he and another boy played on the automobile and changed these arrangements. Of course, if this evidence is true, then the defendant has completely rebutted any possible inference of negligence that might arise from the mere happening of the accident.

[8] In my opinion, however, no such inference can fairly be drawn from the circumstances surrounding the happening of the accident. There is absolutely no evidence "that, if the automobile was left in the state to which the chauffeur testified, it could have gone down bill unless interfered with, and the mere fact that it certainly remained in the position in which it was left for several minutes before it started down hill is some evidence that it was left in a safe position. The circumstances of the accident, therefore, are at least as consistent with the view that the accident was caused by the act of a third person as by the defendant’s negligence. In such circumstances the rule of res ipsa loquitur does not apply, for it is well established that:

The “rule of res ipsa loquitur cannot be applied where no negligence on the part of the defendant is shown by direct evidence, and it is apparent that there may have been other causes than the defendant’s negligence which led to the accident.” Keenan v. McAdams & Cartwright Elevator Co., 129 App. Div. 117, 113 N. Y. Supp. 343.

It follows that unless the plaintiff can fill out his proof by evidence that, even though the- automobile was left as the defendant claims, it still could have gone down hill of its own weight, or by evidence that actually nobody interfered with the truck while standing in the position in which it was left, there can be no fair inference that the accident occurred through the defendant’s negligence. In reaching this conclusion, I have not overlooked the fact that there is some evidence that the auto truck started to slide down hill a second time after the accident; but inasmuch as there is no evidence that its position at that time was analogous to its original position, or that the brakes were then applied, this evidence is quite immaterial.

[4] It has been urged that, even if the plaintiff has made out no cause of action in negligence, he has made out a cause of action in trespass by proving an invasion of his premises, even though without negligence on the defendant’s part. In this contention I cannot agree. A trespass necessarily involves an invasion by act of the trespasser, and there can certainly be no trespass on the" part of one person merely because his property is precipitated on another’s land by act of a third party. Consequently, evidence which is insufficient in this case to hold the defendant on the theory of negligence, because the accident may well have been caused by the act of a third party, is a fortiori also insufficient to establish trespass.

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

DEEANY, J., concurs.