
    John H. McGinnis, as Administrator, etc., of Clarence McGinnis, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Third Department,
    May 3, 1911.
    Railroad—negligence — injury to hrakeman through defective brake — proof not justifying recovery — res ipsa loquitur.
    Where a hrakeman, having set the brake on one of two cars which were coupled together, was killed while engaged in removing' ice from the coupling of another car, owing to the fact that the brakes did not hold and the cars, being upon a slight grade, descended upon him without warning, there can be no recovery upon mere proof that the brake upon one, of the cars was defective when, it appears that had he set the brake on the ear not shown to be defective it would have held both of them. There is no presumption that the brake on the other ear was defective under the doctrine of res ipsa loquitur by reason of the fact that the car moved, as there is an equal presumption that the ears moved because the decedent was negligent in setting the brakes.
    Betts, J., dissented.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 15th day of August, 1910, upon the verdict of a jury for $5,000, and interest, and also from an order entered in said clerk’s office on the 19th day of September, 1910, denying the defendant’s motion for a new trial made upon the minutes. .
    
      Robert Wilkinson, for the appellant.
    
      George K. Daley [John T. Norton, of counsel], for the respondent. ,
   Smith, P. J.:

The action is for damages suffered by the death of plaintiff’s intestate while in the defendant’s employ, caused by the want of repair of certain brakes upon certain cars of the defendant. These defects, it is claimed, allowed these cars to run down upon the plaintiff’s intestate while in the pursuit of his duties, causing his death. The defendant’s engine had pushed four cars upon a siding, which was upon a slight grade. The car furthest north was a. Merchants’ Dispatch Transportation car, , called in the evidence a M. D. T. car. Next, south was car No. 3205. Next to that was car No. 2252. Still south was Mount Vernon car, and then the engine. The coupling on car 2252 was covered with ice so that it could not he attached to car 2205. Car 2205 was attached to the M. D. T. car. The plaintiff’s intestate was required to set the brake so as to hold the two cars, the M. D. T. and- the 2205, while the engine drew away .from them the two cars, the Mount Vernon and 2252, •four or five feet. He set the brake upon the M. D. T. car. He was then directed to take a hammer and break off the,ice upon the coupling of car 2252. While he was engaged in so doing the two cars, upon one of which plaintiff’s intestate had set the brake, moved without warning upon him and caused the injury which resulted in his death.

There is considerable evidence as to a defective brake upon • car 2205. I cannot see that that is material in this case,' because the evidence is undisputed that if the brake was sound upon the M. D. T. car to which car 2205 was attached and was properly set, that brake would have held the two cars upon the track and prevented their coming down upon the plaintiff’s intestate. Plaintiff’s counsel seems to recognize the necessity of proving that the brake upon the M. D. T. car was also defective, and without other proof rests his case upon the doctrine of res ipsa loquitur, insisting that as inasmuch as the proof shows- that with an adequate brake properly set the cars would have held, the mere moving of the car is of- itself evidence that the brake was defective. This position, however, lacks strength, by reason of 'the necessary assumption that the brake on the M. D. T. car was properly set by plaintiff’s intestate. There is no proof of that fact, and without it the inference is just as strong .that..the moving-of the two cars was caused by a careless setting of the brake as .by a defective brake, and stronger in fact by reason of the evidence that right after the accident the brake -upon the M. D. T. car was sworn to be in perfect order. Plaintiff’s counsel seems to rely upon the. case of Ryan v. Fall River Iron Company (200 Mass. 188). That case, however, was a case where an operative was injured by the sudden and automatic starting of a machine, which, if in proper condition, could not start automatically» There had been evidence that the machine was an old one, and that some repairs had been made upon it within three months before the accident, and that the repairs were made in an improper way, so as to render automatic starting likely. The doctrine of res ipsa loquitur was there properly applied. The distinction between that case and the case at bar is noted in the opinion itself where the court says: The occurrence of an accident, standing alone, is not always evidence of negligence. It may be as consistent with the innocence as with the fault of the person controlling the agency by which the accident happened. When the precise cause is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then a verdict should be directed against the plaintiff.” We are-of opinion, therefore, that the plaintiff has failed to show that the negligence of the defendant has caused her injury.

The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except Betts, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  