O’Brien, J.:
The theory upon which the plaintiffs’ case rests required proof that the excavation complained of was made by the defendant, and so negligently that damage to them resulted therefrom. The damage or its amount is not contested, but the appellant, insists that there is not sufficient proof that it made the excavation, or, if it did, that it failed in any way to exercise due care and caution. On the other hand, the respondents contend that there was sufficient evidence connecting the defendant with the flow of water in and upon the plaintiffs’ premises, and as to the defendant’s negligence, which warranted the submission of both those questions to the jury. •
The defendant’s admission that it was engaged in making an excavation in the vicinity of plaintiffs’ premises on the day in question, together with the evidence that there was but one excavation at that time going on in the street, while slight, was sufficient from which the jury might infer that the excavation was being conducted by the defendant.
Upon the other branch, that of negligence, a more serious question is presented. The respondents argue that the maxim of res ipsa logxdt/ar is applicable. This maxim was formerly of limited application and was practically restricted to cases where a contractual relation existed, as in the case of passengers especially on steam *400railways where the accident arose from- some.' unusual condition in the means of transportation, and also to injuries to travelers upon the street from falling objects from structures erected on or over the street; and to render the maxim applicable it. must be shown that the thing causing the injury was under the control of the defendant. As well, stated in - Cosulich v. S. O. Co. (122 N. Y. 127): “ Sometimes, it is- true, the, duty which the defendant owes to the plaintiff is of such á nature that proof of the- happening -of the accident under certain- circumstances' and given conditions will be of such legal value as to afford presumptive' evidence of negligence, and cast upon the defendant the burden of explanation. This rule has been applied, to the-carrier of passengers, especially in conveyances propelled by steam, where the consequences of an accident are frequently fatal to human life, and the public interests require that in such cases the carrier shall use every precaution which human skill and foresight can provide to "prevent, accident and its results. Even in those cases-there, must be reasonable- evidence of. -négligence before a defendant can be called upon to relieve itself from the presumption of negligence. ‘ But- when, the thing causing the injury is shown to be under the control of the defendant, and the accident is such as in the ordinary course of-business does ■ not happen, if - reasonable care, is used, it does, in absence of explanation by the defendant, "afford sufficient -evidence that the accident arose from want of care on -its .part.’ (Citing cases.) But dt is believed,’ says Mr. Thompson, ‘ that it is never true except in contractual relations, that the proof of the mere fact that. the accident happened to the plaintiff; without more, will amount to prima facie proof of negligence" on the part of the defendant.’ (2 Thomp. on Neg. 1227.)”
That the rule has been extended to actions, sounding in tort, where no contractual relation existed, is shown by Clarke v. Nassau Electric R. R. Co. (9 App. Div. 52), and cases there cited. ■ That was an action brought to. recover damages resulting .from the killing of a horse, in which it appeared that while the plaintiff was driving along the street on which the defendant maintained an electric railway, his' horse stepped upon one of the rails of' the defendant’s ■tracks, sprang into the air and fell down upon the track, where he died in a few" minutes. In the course of the opinion Mr. Justice *401Bartlett says: “ But the very accident itself tended to show that such defective insulation existed or some other condition which would produce the same effect. The plaintiff, or any other traveler suffering a similar misadventure, could have no means of ascertaining the precise state of the defendant’s plant in respect to insulation or in respect to contact with other sources of electrical energy. The fact that the defendant brought electricity into the street for use as a motive power, and the fact that electricity so employed was capable of escaping in such a way as to produce the casualty which actually took place, were sufficient, taken together, to justify the inference that the accident was due to the agency of the defendant, in the absence of proof that it was otherwise caused. The maxim res ipsa loquitur is directly applicable. (Citing cases.) The learned counsel for the respondent in his brief apparently assumes that this doctrine cannot be invoked unless the facts are such as to exclude every hypothesis but that of the defendant’s negligence, and argues that the railroad * * * might have been in perfect order and that the accident might have been occasioned by the carelessness of third persons engaged in stringing telegraph or telephone or electric light wires; but the rule is one which relates merely to negligence prima faoie, and it is available without excluding all other possibilities. * * *. The doctrine 'of res ipsa loquitur simply calls upon the defendant, after proof of the accident, to give such evidence as will exonerate him, if any there be, and relieves, the plaintiff from the burden of proving the non-existence of an adequate explanation or excuse.”
Aside from the fact that plaintiffs’ goods were injured hy water flowing into their cellar, we have additional evidence from which .the inference could be fairly drawn that the defendant, while engaged in digging in search of what was stated by one of the witnesses to be a steam leak, or for some other purpose, caused a fracture which “looked * * * like an open cut” in the lead pipe that for eleven years prior to that time had been used by the plaintiffs for taking water from the street into their premises. To paraphrase the language of Mr. Justice Parker, in the opinion from which we have already quoted, we think that the proof of the happening of the accident, under such circumstances and conditions, was of such-*402legal value as to afford presumptive evidence of negligence and cast upon the defendant the burden of explanation. Having offered no ■explanation, the question was properly submitted to the jury, and their verdict should not be disturbed.
The other questions raised by the appellant, as to the plaintiffs’ contributory negligence, and that the damage occurred in • and through a vault in the street occupied by them, for which no license is shown, we think are without merit. The only, ruling upon evidence that is challenged is ■ the permitting of testimony as to the repair of the pipe after the accident. Conceding that such testimony was immaterial or. incompetent, we think it was perfectly harmless, because its tendency could only be to prove the existence of some defect in the pipe, and it was proven beyond contradiction by other testimony, not objected to, that the pipe had a fracture in it like an open cut, and testimony as to whether it was repaired afterwards or not did not strengthen the fact which the evidence alluded to tended to establish.
We think the judgment was right and should be affirmed, with costs.
Pattebsonj Rumsey, Ingraham and Parker, JJ., concurred.
Judgment affirmed, with costs.