George Foltis, Inc. v. City Of New York

38 N.E.2d 455 (1941)

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Nature of the Case

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Facts

P owned a restaurant that was damaged by water from a broken water main installed in the street by D and maintained by D. P produced evidence intended to show that the city failed to shut off the water from the broken water main within a reasonable time after it received notice of the break. P produced no evidence to show the cause of the break and no evidence that the break was due to negligence of D in the construction or maintenance of the water main unless, from the nature of the break in a main constructed and maintained by D, negligence may be inferred or presumed by application of the rule of res ipsa loquitur. D moved to dismiss the complaint on the ground that P had failed to prove a prima facie case. The trial court reserved judgment on that issue. D produced evidence sufficient, if credited, to show that it did not fail in any duty to exercise reasonable diligence in shutting off the water after it received notice of the break. D produced no evidence to show the cause of the break. It did attempt to prove that whatever may have been the cause of the break, no negligence by D, either in the construction or maintenance of the pipe, caused or contributed to the injury. D made a motion to dismiss the complaint and also for the direction of a verdict. The trial judge reserved decision upon that motion. The jury found that D had not failed to use reasonable care in the construction or maintenance of the water main, nor had it failed to use reasonable diligence in shutting off the water. The jury found that P had sustained damages of $2,500. The trial judge, disregarding the findings of the jury in favor of D, held that the rule of res ipsa loquitur applied and, as matter of law, dictated an inference or presumption of negligence. He, therefore, granted the motion of P upon which decision had been reserved, for the direction of a verdict for the amount of damages suffered by P as found by the jury. This appeal resulted.