
    Eva Henson, as Administratrix, etc., of William S. Henson, Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    Fourth Department,
    November 12, 1907.
    Railroad — negligence — derailment- of car —burden of proof to show cause of accident—facts raising question for jury.
    Evidence in an action to recover damages for the death of a brakeman who was killed by the derailment of .a car, examined, and held, that the question of the intestate’s freedom from contributory negligence should have been submitted to the jury. Reid further, that the evidence was insufficient, to show that the. track was unsafe or defective..
    Where there are two or more possible causes of an injury fpr one or more of ■which the defendant is hot responsible, the plaintiff in order to, recover must show that the. injury was wholly or partly the. result of that cause which would render the defendant liable, and if it be as probable that the inj ury resulted from one cause as from another, the plaintiff cannot recover.
    When an accident may have happened from several causes, for some of which the defendant would not b.e responsible, the plaintiff in opposing a nonsuit is entitled to urge every inference of negligence which a jury might legitimately have drawn from the facts disclosed ‘
    When, a car in the middle of a freight train passing, slowly-over a curved track, which is unobstructed and. of reasonably safe construction and maintenance, is derailed, it will be presumed that the ear did not leave the track because of the curve .but rather by reason of some condition in the car itself.
    It is presumed that a master has exercised due care in providing safe'appliances, and the fact that the truck of a car which was derailed was found after the accident tó lack a “column bolt” is not sufficient to establish negligence, if there is no evidence that the defect existed before the accident.
    But when it is shown that the wooden bolster on one of the trucks of the car derailed was broken near the center and that one of the truss rods supporting the bolster was not burred so as to secure the nut, and there is evidence from which the jury would be warranted in finding that the nut had been lacking from the truss rod in question for a considerable time prior to the accident, and in the absence of the nut the bolster was weakened, representing in carrying power only the strength of the wood itself, the defendant’s negligence in this respect should be submitted to the jury, and a nonsuit is error.
    McLennan, P. J., and Williams, J., dissented.
    Appeal by the plaintiff, Eva Henson, as administratrix, etc., from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the clerk of the county-of Ontario on the 31st day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Ontario Trial Term, and also from an order entered in said clerk’s office on the 19th day of November, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      W. Smith O'Brien, for the appellant.
    
      Lyman, M. Bass, for the respondent.
   Robson, J.:

At the close of plaintiff’s evidence the court granted defendant’!» motion for a nonsuit, saying that “ the causes of the accident are purely speculative, and I cannot see where there is any evidence here by which we can rightfully infer, where an inference could be rightfully drawn, either that the decedent had been free from contributory negligence, or that the defendant had been negligent in any duty that it owed to its employee; and for these reasons I deem it my duty to grant this motion for a nonsuit.” '

On this appeal counsel for respondent does not suggest that plaintiff’s evidence was not sufficient to require the submission to. the jury, as a question of fact for their determination, whether or not-plaintiff’s intestate'was free from negligence on his part, which contributed to the accident which caused his death; and we think that' the facts and circumstances attending the accident, as disclosed by her evidence, clearly entitled her to the submission- of that question for the jury’s determination, if that were the sole question in the case to be resolved; and that'the court was not justified in deciding as matter of law that freedom from contributory negligence had not been shown. •

The second reason given by the learned court for granting the non-suit, that -it had not. been shown that defendant’s negligence caused the accident, presents a more serious question for Our determination, and a brief' recital of the facts, which the evidence discloses, will aid in arriving at an understanding of the point now presented for consideration.

Plaintiff’s intestate at the time of the accident, which occurred December 23, 1905, was employed by defendant as a brakeman, and was one of the crew in charge of one of defendant’s trains running on a branch of defendant’s'railway from Naples to Geneva. He appears to have been competent in the discharge of and familiar with the duties of his position. This train, beside the locomotive, consisted of ten freight cars and one combination passenger and baggage coach. It reached the Pre-emption street crossing, which is a short distance from the terminal of the branch at Geneva, about six o’clock in the evening. At this point it stopped to. permit passengers to alight. The evening was dark and cold, and signals for the operation- óf the. train were necessarily given by the use of lanterns. • Decedent is variously referred to as the middle or rear brakeman, and at this time he was standing on the top of a freight car three or four cars ahead of the rear coach, which was t-hén his proper position. The head brakeman, also stood on the top of a car. nearer the engine, separated from decedent by a number of intervening cars. After the passengers had alighted the conductor gave with his lantern the signal to'go'ahead. Decedent passed the. signal to-the head brakeman, and he in turn repeated it to the engineer. The train had proceeded but a few hundred feet when the head brakeman observed a stop signal given by decedent. This he at once repeated to the engineer, and on looking again towards the place where he had last seen the light of decedent’s,lantern it had disappeared. . The train was moving slowly, and that part of it on-which the head hrakeman was stopped after moving about its length from the time the stop signal ivas given. Immediately after the train came to a standstill the train crew came from either end towards the middle of the train and found the body of the car upon which decedent, presumably, at least, had been riding, separated from its trucks and lying on its side across the track, with its.top towards the head of the train. Decedent’s dead body was underneath the car, only his head and a part of .his shoulders, showing inside the rails arid beyond the top of the car. From the evidence as to indentations on the rail and ties, the jury might have determined that the trucks of the car first left the rails at a point 190 féet distant from the place where the body lay. The derailed car had separated from the cars ahead, and the forward trucks of the next car in its rear were also off the rails. The point at which the first indentation made by the wheels of the derailed car appeared was near the end of a six degree curve in the track, around which the train passed cm leaving the Pre-emption street crossing. It is claimed by plaintiff that the jury would have been justified in determining from these facts that as. the train moved around the curve the forward trucks of the- derailed car ran off the rails, and then after, running a distance of 190 feet was detached from the car ahead and the body of the car tipped' over, throwing decedent forward on the track below as it went over, and falling upon him, crushed him underneath. Plaintiff further claims that the evidence establishes that the accident was solely due to the negligence of defendant, and specifies three separate grounds upon which this claim is based : First, that there were defects in defendant’s track at the point where* the accident occurred, of which defendant is chargeable with notice, and that the derailment of the car occurred by reason of those defects; second, that one of the column bolts, the office of which appears to be to hold together what are known as the arch bars, forming part of each truck of the car, and preventing them from bending under tire weight of the body of the car, was missing ; third, that the bolster on one of the trucks, the office of which is to sustain the weight of one end of the body of the car, broke because of its weak and defective condition.

Without referring in detail to .the testimony, by which it was sought to establish the defective condition of the tracks, we think it sufficient to sáy that an examination of all. the testimony .Bearing ' upon that point satisfies us that it is not sufficient to justify "a finding that such defects as- were disclosed by the evidence made the track unsafe, nor. that any defective condition of the track 'was the cause of the accident'. We may, therefore, dismiss this specification of defendant’s negligence from further consideration. It seems that the effect following the breaking, or removal, of a column bolt and that- of breaking down a bolster are quite similar. .Either difficulty would make the wheels crowd the rails on the outer, or high, side of a.eurve and tend to prevent the car from turning in following the line of the curve, the result being that the wdieels might be pressed with such force against the rails that they would fide it, and go off .the track. - It follows that either difficulty might be sufficient.to cause an accident precisely like the one in question; Defendant on the 'other hand, while apparently- not controverting plaintiff’s claim that either'fact, if proved to exist, might have been efficient to cause the accident, insists that neither condition has been shown to have existed prior to the accident, and that, the actual occasion thereof is at most under the proof a mere matter of speculation.' We recognize the well-established principle, which defendant urges, and which must necessarily.be applied in testing the probative value of plaintiff’s evidence, as establishing defendant’s negligence in cases-of the class, which includes the action here involved, which has been in substance so many times repeated in authoritative utterances off the courts, that, as has. been said, “ this rule is so general, and lias been so often stated, that it'is a mere matter of preferring some form of expression.” (Owen v. Retsof Mining Co., 102 App. Div. 130, 135.)

It is thus stated in Grant v. Pennsylvania & N. Y. Canal & R. R. Co. (133 N. Y. 657): “ Where there are two or more possible causes of an injury, fur one or more of which the defendant is not responsible, the plaintiff, in.order to recover, must show by evidence that the injury was-wholly or partly the result Of that cause, which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result óf one cause as of the other the plaintiff cannot recover.” It is'but an amplification of this rule to say that the plaintiff in her attempt to fasten the charge, of negligence upon the defendant is entitled to urge every inference which a jury might legitimately draw from the facts which the evidence discloses. That a car in the middle of a freight train passing slowly over a curved track, which is of reasonably safe construction and maintenance, does not leave the track except for some cause other than the curve in the track itself, is an inference which, it seems, might be legitimately indulged. There being no evidence, from which even an inference could be drawn that the derailment' was caused by an obstruction on the track, it might then be inferred that its occasion was to be sought in some condition of, or accident to, the" car itself. Plaintiff points to the missing column bolt and bent arch bars and the broken bolster, either of which, it is claimed, would sufficiently account for the accident. The only evidence that.the absence of the column bolt could, in this .case, have occasioned the accident is primarily based upon the fact that it was missing from the arch bars when the wreck was cleared, and was not found in the wreckage of the car, and that the bars were bent. Nowhere |in the case does it appear that this bolt was missing, or in any way defective, prior to or at the time of-the accident; and, indulging in favor of defendant the presumption, to which it calls attention, that it, as master, had exercised due care in providing safe appliances and a safe place to work for its servants, we are not permitted to consider the possibility that the derailment was caused by reason of the absence of or defect in the column bolt, simply because it.was missing from its proper place after the wreck and was not found at the place of the accident. The third specification of negligence is, as has been said, that the accident was caused by the breaking of a defective bolster, the alleged defect in which, it is' claimed, had' existed for so long a time that reasonable care in inspection, would have disclosed it, and reasonable promptness in repair, would have remedied it. The strength and consequent efficiency of this bolster were largely dependent, as the evidence shows, upon two truss rods extending. laterally from either end of the bolster down to its center, where they passed under an iron' plate on the under side of* the bolster. The ends of these rods passed through an iron plate at either end of the bolster, and were there secured by nuts intended to be screwed down on the threaded • ends of the rods tightly to the- outside face of the plate. The efficiency of these rods depended entirely upon their being securely held by the burrs at each end in firm contact with the lower side of the plate at the center of' the bolster.' ■ .

Plaintiff gave evidence in reference to the condition' of a bolster in defendant’s yards at Sayre after the accident, which from the evidence the jury might properly have found was sufficiently .identified as one. of the bolsters, which was part of the derailed car.' The ■examination, as testified to by these witnesses, disclosed that the bolster was broken near the center; as-one witness describes it, it was crushed both perpendicularly and laterally. One truss rod was receded at the end from, four to six inches, and the burr Was missing from that end. There was also given evidence as to the condition and appearance of the end of.this'rod, which should have held the nut, from which the jury' would have been warranted, in finding that it had been missing for a considerable time prior to the accident; and that its absence could have been discovered by competent inspection. The effect of this truss rod being loose, due to the missing nut, was that, instead of having the additional support of the two rods, the bolster represented in carrying power only the strength of the wood itself, thereby being weakened to such an .extent that it was liable to break under the loaded body of the' ear. The result to be anticipated following the breaking of the' bolster has already been referred to. That, it would have been adequate .to cause the accident is unquestioned.

We conclude, therefore, that plaintiff presented sufficient evidence to have.properly required the submission to the jury under proper instructions the question whether, the accident was due to the "negligence of defendant in. those particulars which we have already pointed out.'

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

All concurred, except McLennan, P. J., and Williams, J., who dissented.

. Judgment and ordered reversed ánd new trial ordered, with Posts to appellant to abide- event.  