80 A.D. 136 | N.Y. App. Div. | 1903
On the 23d day of September, 1899, at about six o’clock in the evening, the plaintiff boarded a north-bound car on the defendant’s Third avenue line at One Hundred and Thirty-eighth street and paid her fare as a passenger. It was an open car propelled by electric power, and between Wendover avenue and One Hundred and Seventy-second street, while it was running at a high rate of speed, it jumped the track and struck an elevated railroad pillar precipitating the plaintiff forward and inflicting injuries to recover for which this action was brought. The court instructed the jury, among other things, that the plaintiff made out ay> rima facie case by showing that the car left the track without any apparent reason so far as she could ascertain, and “ that the burden of proof is cast upon the
It is evident that the learned trial justice intended to apply the doctrine of res ipsa loquitur to this case, but the jury were erroneously instructed with reference to the burden of proof upon that evidence. Where the doctrine of res ipsa loquitur applies the happening of the accident and the attending circumstances raise a presumption of negligence sufficient to warrant a finding of negligence in the absence of any explanation on the part of the defendant. It is then incumbent upon the defendant in order to escape liability to offer evidence tending to rebut this presumption of negligence, but the burden of proof is not shifted upon the defendant as the jury were instructed in this. case. The burden of establishing that the injuries were received through the negligence of the defendant rests upon the plaintiff at the commencement of the trial and there continues throughout the trial. (Kay v. Metropolitan St. Ry. Co., 163 N. Y. 453 ; Hollahan v. Metropolitan St. Ry. Co., 73 App. Div. 164; Ludwig v. Metropolitan St. Ry. Co., 71 id. 210.)
This error requires a reversal of the judgment and that a new trial be granted.
We deem it proper, however, for the guidance of the court upon a new trial to determine whether the doctrine of res ipsa loquitur is applicable. As has been seen, the evidence indicated that not only was the car proceeding at a very rapid rate of speed, but that either ■on account of its excessive speed or the condition of the track it
Hastings v. Central Crosstown R. R. Co. (supra) was a horse car case. The car left the track at a curve. The plaintiff had been nonsuited, but there was evidence of negligence on the part of the driver which this court deemed sufficient to send the case to the jury. The appellant also contended that the doctrine of res ipsa loquitwr applied, and on that subject this court said: “ Counsel for the plaintiff insists that negligence is to be imputed to the defendant, from the mere fact that the car left the track, upon the authority of Edgerton v. N. Y. & H. R. R. Co. (39 N. Y. 227) and subsequent cases to the same effect. But the rule applied in that case refers altogether to steam railways, and to cases where not only the vehicles but the tracks, are within the entire control of the defendant. It would be grossly unjust to extend that rule to street railway companies which have not exclusive control over their tracks or the roadway, but whose tracks are daily used by thousands of other vehicles, and are placed in public streets under the control of the city authorities and in which work is constantly being done on or
In Stevenson v. Second Ave. R. R. Co. (supra) the plaintiff’s son was injured by the derailment of a horse car and plaintiff recovered a verdict. The only other evidence of negligence aside from the derailment of the car was that the driver suddenly turned his horses to avoid a collision. The trial court held in effect that the doctrine of res ipsa loquitv/r was not applicable, and in this ruling the plaintiff acquiesced. On the appeal the plaintiff sought to sustain the judgment on the ground - that this rule was applicable and that the decision of this court in Hastings v. Central Crosstown R. R. Co. (supra) was erroneous. The opinion of this court in the Stevenson case shows that the consideration of this question was not actually essential to the decision of the Hastings case; but also held that the appeal must be determined on the theory on which the action was tried, and that the plaintiff having acquiesced and being the respondent could not invoke the application of the doctrine of res ipsa loquitur.
Hollahan v. Metropolitan St. Ry. Co. (supra) was the case of an injury to a passenger caused by the derailment of a horse car. There was other evidence of negligence on the part of the defendant, and the application of the doctrine of res ipsa loquitur was not denied.
In Ramson v. Metropolitan St. Ry. Co. (supra) a passenger was injured by the derailment of a horse car, and there was other affirmative evidence of negligence on the part of the defendant sufficient to sustain the verdict. On appeal the defendant contended that the doctrine of res ipsa loquitur was not applicable, and that without the presumption raised by that doctrine the evidence was insufficient. This court, in the opinion, said, preliminarily to discussing the affirmative evidence of negligence: “ The mere fact of derailment is not sufficient (Stevenson v. Second Ave. R. R. Co., 35 App. Div. 479), but this, together with evidence as to its cause, from which the inference might be drawn that the defendant’s act or negligence produced it, is sufficient to present a question for the jury upon the subject of defendant’s liability. (Hastings v. Central
As has been seen, these were all horse car cases, and in them it was not essential to the decision that the court should make application of this rule. Whatever the rule may be in that class of cases, we are of opinion, as already stated, that the doctrine res ipsa loquitur should be applied to cases of injuries to passengers caused by the derailment of street railway cars operated by mechanical or by mechanical and electrical power, or, in other words, that under such conditions the cases are to be assimilated to those in which the vehicles are operated by steam power.
Originally horse ears for the transportation of passengers were small and comparatively light. They were easily derailed. It is common knowledge that they could be and were readily derailed and pulled along the street to pass an obstruction and then driven back upon the track. The tracks themselves were not originally of heavy construction, and the rails were thin and light. Now the construction of the tracks is substantial and the rails are as heavy as those employed in the construction of steam railroads. The modern electric, cable and compressed air power cars are large and heavy, and not readily derailed. Although the power and speed of these cars are greater than of horse cars, yet if properly equipped with modern appliances they are more readily controlled, in proportion to their speed, at least. It is true that the street railway companies have not the exclusive use of their tracks, but between crossings they have the paramount right to such use. Steam railways have not the right to the exclusive use of their tracks at highway crossings, or where the .tracks are constructed longitudinally along the surface of a street, as is the case in many instances. If the derailment of a passenger car on a steam railroad operated along the surface of a street gives rise to the presumption of negligence on the part of the company, on principle we see no reason why the rule should not be applied to street railway cars operated by modern power. It has been applied to collisions between street cars on the same track (Wynn v. Central Park, North & East River R. R. Co., 133 N. Y. 575), also to collisions between street cars at street railway track crossings (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y.
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; McLaughlin, J., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.