
    Louie B. Losie, as Administratrix, etc., of Chauncey B. Losie, Deceased, Appellant, v. Delaware and Hudson Company, Respondent.
    Third Department,
    January 4, 1911.
    Railroad — negligence — death of passenger on sleeping car — res ipsa loquitur — proof not justifying recovery.
    In an action to recover for the death of the plaintiff’s intestate it appeared that - he took passage on a sleeping car in the defendant’s train, having last been seen alive when he went to his berth, where he undressed and lay down: His dead body was found on the tracks thirty-one miles from the ■ station at which he took the train. There was no proof as to the manner " in-which he met his
    
      death. Most of his clothing was found in the berth, a window of which was found to have been raised twelve or fifteen inches above the top of the dust screen; but the porter testified that he had only opened the window far enough to insert the screen and had then closed it tight. There was evidence tending to show that the vestibule door at the end of the car was out of repair, but no proof that it was open or that the deceased was seen in the aisle or near the doorway after he Went to his berth. There was no proof of any sudden or extraordinary lurching of the car.
    
      Held, that the doctrine of res ipsa loquitur was not applicable and that a nonsuit was proper.
    The doctrine of res ipsa loquitur does not exempt the plaintiff from the burden of proving negligence affirmatively, or circumstances making negligence a legitimate, if not an irresistible inference. It is not the accident but the manner and circumstances thereof that justifies the application of the maxim.
    Appeal by the plaintiff, Louie B. Losie, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Chemung on the 8th day of July, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Chemung Trial Term, and also from an order entered in said cleric’s office denying the plaintiff’s motion for a new trial made upon the minutes. Q
    
      David C. Robinson, for the appellant.
    
      Lewis E. Carr, for the respondent.
   Sewell, J.:

The action Avas brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. At the close of the plaintiff’s case the learned trial justice granted a motion for a nonsuit and the plaintiff excepted. The appeal, therefore, presents the question whether upon the evidence given the plaintiff was entitled to have the case submitted to the jury.

Briefly stated, the facts were that about midnight of July 10, 1907, the deceased, a man apparently prosperous in business, happy in his 'family relations and in good health, boarded the defendant’s train at Albany to go to Elmira. He paid for and occupied a lower berth in one of the Pullman cars. The last seen of him alive was

about one o’clock or a little later, when he went to his berth, undressed and lay down. His dead body was found between the' rails of the east-bound track near Esperance, a station thirty-one miles west from Albany. Afterwards, and as the Erie train having the Pullman car attached was nearing Elmira, the deceased was missed and a search was made. His hat and all of his outer clothing were found hanging on a hook at the foot of the berth. The window toward the engine and at the head of the berth was closed.

A dust screen six inches high, extending across the window at the foot of the berth, was in place, and the sash was raised twelve or fifteen inches above the top of the screen. The evidence also tended to show that the vestibule door at the end of the car was out of repair in such a way that it did not latch easily.

The porter in charge of the car testified that he opened the window at the foot of the berth only far enough, to insert the dust screen and then closed it down tight, and that he did not raise it during the night. Ho evidence was given tending to show that the .vestibule door was open or that the deceased was seen in the aisle or near the door at any time after he went to his berth. ..Ho £)vitness testified to any sudden or extraordinary lurching or movement of the car.

There was nothing to justify the claim of the plaintiff that the deceased fell or was thrown through the window or that he met his death in consequence of the defect in the door. Ho witness was able to tell how he came to be on the track. There was an absence of any evidence on that point, so that the jury could only surmise in reference to it. The plaintiff failed to prove any fact or circumstance from which negligence could be legitimately inferred. • The jury could not assume that the defendant was negligent, from the mere happening of the accident. The doctrine of res ipsa loquitur was not intended to exempt the plaintiff from the burden of prov-i ing, affirmatively, negligence, or circumstances making negligence a legitimate, if not an irresistible inference. In the language of Judge Cullen in Griffen v. Manice (166 N. Y. 193) its “ application * * * presents principally the question of the sufficiency of circumstantial evidence to establish, of to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence,” It is not the accident but the manner and circum-

stances of the accident that justify the application of the maxim. The fact of the casualty and the attending circumstances may themselves furnish all the proof of negligence that it is necessary to offer, but when, as in this case, they do not, a plaintiff must prove facts and circumstances from which the jury may fairly infer negligence as the cause of the accident. “ In no instance can the hare fact that an injury has happened, of itself and divorced from all the surrounding circumstances, justify the inference that the injury was caused by negligence.” (Benedick v. Potts, 88 Md. 52; Griffen, v. Manice, supra.) We think that the court in the trial of the present case correctly interpreted this rule and properly refused to permit the jury to speculate or conjecture as to how the accident occurred or to guess that the plaintiff’s intestate was free from contributory negligence. It follows that the judgment and order should he affirmed, with costs.

Judgment and order unanimously affirmed, with costs. value of their services in that the minutes of their proceedings are not before the court, or affidavits stating their own opinion as to the value of. their services, or that they were necessarily or actually occupied during all of the time for which they claim compensation.  