Vernell Godfrey v. County Nassau

It is our opinion that plaintiff may properly invoke that doctrine on this appeal, although specific acts of negligence were alleged in the complaint, since there was no attempt to prove those acts on the trial (cf. Manley v. New York Tel. Co., 303 N. Y. 18; Fischer v. Johnson & Sons, 20 Misc. 2d 891). However, it is also our opinion that, on the record presented, defendant did not have such exclusive control of the manhole cover as would justify the application of the res ipsa loquitur doctrine (cf. Galbraith v. Busch, 267 N. Y. 230, 234; George v. City of New York, 22 A.D.2d 70, 71; Anno., 174 A. L. R. 608-611).