In New York, as elsewhere, the doctrine has had its vicissitudes although the basic concepts have been reasonably well settled by the landmark case of Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36 (1935), and the cases following and approving it. See, for example, Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592 (1955); Manley v. New York Telephone Company, 303 N.Y. 18, 100 N.E.2d 113 (1951); Neuhoff v. Retlaw Realty Corporation, 289 N.Y. 293, 45 N.E.2d 450 (1942); George Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122 (1941); and Mercatante v. City of New York, 286 A.D. 265, 142 N.Y.S.2d 473 (1st Dept. 1955). See also Citrola v. Eastern Air Lines, Inc., 264 F.2d 815 (2 Cir. 1959).

In the language of the Galbraith case, supra, 'The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence.' (267 N.Y. p. 234, 196 N.E. p. 38). As the New York Court of Appeals said there, the doctrine is not called into play unless there is evidence 'which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant.' (267 N.Y. p. 234, 196 N.E. p. 38).

Res ipsa loquitur, when applied, merely substitutes for proof of specific negligent conduct an inference of negligence arising out of the happening of the accident which, in itself, is sufficient to make out a prima facie case for the plaintiff. The burden of explanation then shifts to the defendant to come forward with evidence indicating that the accident was not due to its fault. But the ultimate burden of proof is not changed, for the plaintiff is still required, on the whole case, to convince the trier of the facts by a preponderance of the evidence that the accident was caused by the defendant's negligence. Moreover, 'if a satisfactory explanation is offered by the defendant, the plaintiff must rebut it by evidence of negligence or lose his case.' Plumb v. Richmond Light & Railroad Company, 233 N.Y. 285, 288, 135 N.E. 504, 505, 25 A.L.R. 685 (1922). Thus, on the whole case there must be, in any event, a preponderance of evidence in plaintiff's favor showing negligence before the trier of the facts, be it court or jury, may find in plaintiff's favor. George Foltis, Inc. v. City of New York, supra; Plumb v. Richmond Light & Railroad Company, supra.

The doctrine has been applied to a wide variety of factual situations including the classic example of bricks or other materials falling from defendant's building, injuries to passengers from causes within control of a carrier, various kinds of automobile accidents, such as cars running into stationary objects, deleterious substances in food sold in sealed containers and claims of malpractice where foreign bodies have been found inside a patient after an operation.

In each case where res ipsa loquitur has been held to be applicable, however, a common factor exists-- the reasonable probability that in the ordinary course of events the accident would not have occurred without defendant's negligence. The conditions under which the doctrine may be invoked are stated in Galbraith v. Busch, supra, 267 N.Y. p. 234, 196 N.E. p. 38, to be as follows:

'Where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant.'

The New York cases have consistently refused to apply the doctrine unless these conditions are shown to be present. See, e.g. Galbraith v. Busch, supra; Manley v. New York Telephone Company, supra; Yandrasitz v. Teddy's The House of Sea Food, Inc., 286 A.D. 146, 141 N.Y.S.2d 635 (1st Dept. 1955); Mercatante v. City of New York, supra; Nahay v. Ta-E-Yatos Realty Corporation, 36 Misc. 2d 1075, 234 N.Y.S.2d 90 (Sup.Ct., New York County, 1962).

In order to satisfy the first of these conditions 'the plaintiff must establish first and foremost the nature of the instrumentality which is alleged to have caused the injury * * * and its identity with the defendant, Paolantonio v. Long Island R.R. Co., 300 N.Y. 640, 90 N.E.2d 495; Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36.' Manley v. New York Telephone Company, supra, 303 N.Y. p. 25, 100 N.E.2d p. 116.

Plaintiff failed to do this here. The only evidence as to how the injury occurred is that it happened during the course of plaintiff's Grand-Mal seizure which the trial court found defendant could not have foreseen. This, without more, wholly failed to establish what the instrumentality was which caused the injury or that it was in defendant's exclusive possession and control.

Moreover, there was no evidence of circumstances showing that the accident would not ordinarily have occurred without neglect of some duty owing to plaintiff.

The proof as to the circumstances of the accident was that Ridolfi sustained his injury while he was properly in the corridor of Ward 11 on the way to or at the drinking fountain when he suffered his seizure. There had been no previous history of such seizure and the trial court found the seizure to have been 'unanticipated and unanticipatable.'

It cannot reasonably be said that an injury otherwise entirely unexplained, occurring during an unanticipatable seizure of this nature, in the course of which there was a fall, would not ordinarily have occurred without neglect of some duty owing to the injured party. Indeed, these circumstances indicate that it was improbable that the injury would be caused by negligence or fault on the part of anyone.

Thus the evidence here did not show the existence of the conditions necessary to satisfy the basic requirement of probability of legal wrong by defendant. Despite this and despite its conclusion that the direct and circumstantial evidence 'does not establish negligence on defendant's part as a more probable inference than an inference of pure accident or of a (non-actionable) battery'; though it was 'compatible with the existence of negligence on defendant's part as a possible cause of the injury' the court below nevertheless applied the doctrine. In consequence it held that the burden of explanation had been shifted to the defendant and that defendant was liable because it had failed to adduce evidence 'fairly explanatory of the event that produced the injury to the plaintiff.'

It was plainly error to apply the doctrine of res ipsa loquitur where, as here, the circumstances shown by the evidence did not indicate that it was any more probable that negligence caused the injury than that there was freedom from wrong, or indeed, that, as the trial court found, negligence or wrong as the cause of the injury was a possibility only.

Absent the inferences arising from the doctrine there was no evidence in this record to show that the defendant was guilty of negligent conduct and it was entitled to judgment.

The judgment of the District Court will therefore be reversed and the complaint dismissed.