
    ROSY MULLER, as Admr’x., &c., Appellant, v. THE SECOND AVENUE R. R. CO., Respondent.
    
      Action for causing death—not enough that plaintiff proves facts equally consistent with negligence or care on part of defendant.
    
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 4, 1882.
    Appeal by plaintiff, from judgment dismissing complaint.
    
      This action was brought to recover damages for causing the death of plaintiff’s intestate, Theodore Muller, who at the time of his death was a passenger in one of defendant’s cars. The deceased was sitting on the left side of an open car, and as the car was turning a curve to the left, he fell out to the left and almost immediately expired. The curve was not a sharp one, and the witnesses all agreed that the rate of speed at which the car approached and passed the curve did not exceed four miles per hour, and that they noticed or felt nothing" beyond the" ordinary jar which is usually experienced on such an occasion. According to the testimony, the deceased fell out contrary to the known laws of force, and the occurrence was not accounted for. There was no evidence showing improper management of the horses or the car, or a defect in the car or the track. The cause of the fall was left to conjecture.
    A. G. Vanderpoel, for appellant.
    
      Hutchins & Platt and Austin G. Fox, for respondents.
   The court at General Term, held: “ that the burden was on the plaintiff to prove more than a mere state of facts, which is as consistent with care as with negligence on the part of the defendant. She was bound to adduce competent proof of facts showing negligence in the defendant or its servants (Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 356).

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.  