Blake v. City of New York

The proof was insufficient to enable the plaintiff to invoke the doctrine of res ipsa loquitur. There was no showing that the pipe which caused the injury was within the exclusive control and possession of the defendant. On the contrary it appears as a fair inference of plaintiff’s testimony, and in fact apparently is conceded, that the pipe was not part of the trolley *752car equipment. (Paolantonio v. Long Is. R. R. Co., 274 App. Div. 1063, affd. 300 N. Y. 640; Manley v. New York Tel. Co., 303 N. Y. 18, 25.) The plaintiff failed to make out a prima facie case of actionable negligence by direct proof. (Alexander v. Rochester City & Brighton R. R. Co., 128 N. Y. 13; De Martino v. Brooklyn & Queens Transit Corp., 258 App. Div. 1072, affd. 285 N. Y. 593.) Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ., concur.