The opinion
Hagarty, J.
(dissenting). I dissent and vote to affirm. This case went to the jury on the theory that the doctrine of res ipsa loquitur was solely applicable in accordance with a charge which although brief, was a correct exposition of that doctrine. The plaintiff did not request that the jury be charged that an inference of negligence might be drawn by them from the facts as distinguished from the presumption of law obtaining in a case governed by the doctrine of res ipsa loquitur. All requests to charge made by plaintiff were favorably passed upon and, by omitting to take an exception or to request a charge, the plaintiff acquiesced in and accepted the charge in its entirety. Even on the appeal here, appellant does not dispute the application of the doctrine of res ipsa loquitur, but, on the contrary, he invokes it; nor does he assert that the verdict was against the weight of the evidence. The *664 reversal is predicated upon a theory which has not been invoked by the appellant. It is the court’s theory, and not that of the interested party, and is advanced after a trial in which the jury has exercised its functions after consideration of the issue as submitted to it under a charge which was accepted as the law of the case. In my opinion, this court has no such power. (Galloway v. Erie Railroad Co., 116 App. Div. 777 ; affd., on opinion below, 192 N. Y. 545 ; Silknan v. Schwartz, 201 App. Div. 38 ; Smith v. New York Anti-Saloon League, 121 id. 600.)
Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event.