
    John D. Retter, Respondent, v. The Olean Street Railway Company, Appellant.
    Fourth Department,
    November 15, 1910.
    Railroad — negligence — injury by breaking axle — res ipsa loquitur — erroneous charge — evidence — effect of declarations against interest — effect of mutual motions for verdict — when issue as to place of injury should be submitted to jury — declarations not res gestae.
    On proof that the derailment of a street car resulting in injuries to a passenger was caused by the breaking of an axle, there is a presumption that the defendant was negligent in using an axle which was too light or not-constructed of good material. The defendant is under the burden of rebutting, that presumption.
    Where there is an issue as to whether the injuries to a passenger were caused by the derailment of the car upon which he was riding or were received at another place, it is error to charge as a matter of law that the plaintiff was hurt at the place of the accident where there is evidence that he stated that he was injured at another place. The effect of such declaration is not merely to discredit the plaintiff’s testimony and should not be so limited.
    Although both parties moved for the direction of a. verdict and a subsequent motion by the defendant to go to the jury upon the question of its negligence was properly overruled, the court holding that the only question was one of damages, the defendant by its motion for a verdict did not waive its right to go to the jury upon the question as to whether the plaintiff was injured at another place rather than at the place of the derailment, as that issue was 'directly involved in the question of damages.
    In such action it is error to allow a physician to testify that the plaintiff complained of pain where the declaration was not part of the res gestee in that it was made long after the accident and was not made in the course of medical treatment. <
    
    Appeal by the defendant, The Olean Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 18th day of June, 1909, upon the verdict of a jury for $1,875, and also from an order entered in said clerk’s office on the 29th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas H. Dowd, for the appellant.
    
      Dana L. Spring and George E. Spring, for the respondent.
   Kruse, J.:

This case comes here on appeal for the second time. The plaintiff, a passenger on the defendant’s car, claims to have been hurt in a derailment of the car. The jury rendered a verdict in his favor on the first trial, and upon appeal it was set aside and a new trial ordered, upon the ground that the finding of the jury that the plaintiff was hurt at the time of the derailment was against the weight of the evidence. (127 App. Div. 947.) Another verdict was rendered in his favor on the second trial, under- a charge that the only question of fact in the case was one of damages, the trial judge holding, first, that the defendant’s liability was conclusively established and, second, that the plaintiff was hurt at the time iff the accident and not at the railroad shops where he was then at work.

We are not inclined to differ with the trial judge upon the first proposition. If the derailment occurred from the breaking of an axle and there were no defects, latent or otherwise, and the track was in good condition, as defendant contends, it would seem to follow, in the absence of any other known cause, if the car was properly managed and not overloaded, that the axle was too light or not of good material. There is no proof of its strength except that it broke. Who made it, where it came from, how long in use, does not appear. Defendant’s, own expert seems to concede that such an axle running on a track, made of good quality of material, would not have broken. It is quite probable that the trouble was in the track or In running the car tev •'ast at the curve, and that the axle broke after the car left the tr; But whether that is so or not, I think the defendant did not explain the -t^use of the derailment so as i:o overcome the presumption- of its neg h<- -i-e arising therefrom in connection with■ ¡.he rounding ' 'ircu'instances. (3 Elliott Railroads [2d ed.], § 1096 ew., v. Rochester & Syracuse R. R. Co., 18 N. Y. 534; Bissell v. New York Central R. R. Co., 25 id. 442, 445 ; Edgerton v. N. Y. & Harlem R. R. Co., 39 id. 227; Van Inwegen v. Erie R. R. Co., 126 App. Div. 297; affd., 194 N. Y. 534.)

As regards the second proposition, it would seem to be based upon' a misapprehension of the evidence, or of what the defendant claimed therefrom. That the plaintiff had a bad knee is beyond dispute, but whether it was hurt at the time of the accident or at the car shops or was solely the result of a disease for which the defendant is not responsible, is in dispute. The plaintiff repeatedly stated to others, as appears by their testimony, that he was hurt at the shops. His declarations, if truthful, were alone sufficient to establish that fact. The declarations were commented upon in the charge, but their effect seems to have been limited to discrediting the testimony of the plaintiff. Of course, that would be true if the declarations had been made by a witness not the plaintiff.

The charge may have been made under the impression that defendant’s counsel had admitted that there was no evidence of the plaintiff having been hurt at the car shops. Gounsel’s statement, as appears in the record, is that he had no other evidence than the statements of the plaintiff that he was hurt at the shops. The correctness of the statement as charged was challenged by defendant’s counsel and the point raised by appropriate exceptions.

Plaintiff urges that the defendant waived that question by moving for the direction of a verdict at the close of all the evidence. I think not. Both parties moved for the direction of a verdict. Plaintiff insisted that the only question for the jury was that of damages, while the defendant claimed that the plaintiff had failed to establish its negligence. The trial court ruled in favor of the' plaintiff, denying the defendant’s motion. Thereupon the defendant asked to go to the jury upon that question, which was refused. While we think the trial court correctly ruled that the defendant was not entitled to go to the jury upon the question of its-negligence, that did not denvívo^iE ol having the jury pass upon the question whether, if five plaintiff w„'s hurt at all, he was injured at the car shops an ,d not in the deraiment. That question was directly involved in ' jhe question qf.-l^mageS. N

I also tin" 'tk it yrjs 'improper to permit the plaintiff’s witness Dean, to testify on behalf of the plaintiff that the plaintiff had complained to him of pain. This was not part of the res gestee ; it was made long after the accident, not to a physician in the course of medical treatment. (Kennedy v. Rochester City & Brighton R. R. Co., 130 R. R. 654.)

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

All concurred; Spring, J., not sitting.

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