
    Eliza Williams, Appellant, v. The New York and Queens County Railway Company, Respondent.
    
      Negligence ^-injury from the explosion of a defective fuse used by a street railroad, company — res ipsa loquitur — what facts throw the burden of proof upon the company—a/mendment of a complaint, when it should be allowed on the trial.
    
    The complaint in an action brought to recover damages for personal injuries sustained by the plaintiff, while a passenger upon one of the defendant’s electric cars, alleged that “ owing to the careless and negligent management of said car by defendant in putting on too heavy a current or voltage 'of electricity a certain weak and insufficient fuse, supplied and made use of. by the defendant, suddenly exploded with a loud report, setting free a heavy current of electricity whereby said car was, as plaintiff is informed and believes, set on fire, and a large flame"of fire and cloud of smoke giving forth flames of burning material involved said car; ” that by reason thereof the passengers became terrified, and that the plaintiff, thinking herself in peril, tried to escape, but was forced to the street by the violence of the crowd and was injured.
    The complaint also alleged that the defendant failed suitably and properly to guard against such an occurrence by inclosing the fuse so that its explosion would not alarm and terrify the passengers and so as to prevent a conflagration of the car.
    Upon the trial the plaintiff gave evidence tending to show that a fuse, used in connection with the electrical appliances of the company, blew out, and that a blaze enveloped the front of the car. The plaintiff also attempted to prove that the accident was the result of careless and negligent management of the car, but was unsuccessful in such attempt.
    The trial judge refused to submit the case to the jury on the ground that the allegations of the complaint were not sufficiently broad to allow the question of the defendant’s negligence to be submitted to the jury upon the principle of res ipsa loquitur, and refused to allow the plaintiff to amend her complaint. jHeld, that the facts proved by the plaintiff were sufficient to throw the burden of explaining the cause of the accident upon the defendant, and that the refusal of the court to allow the plaintiff to amend the complaint was erroneous; That such an amendment would not have prejudiced the defendant, as from the nature of the case the defendant must have come into court with at least as complete knowledge of the exact cause of the accident as the plaintiff herself.
    Appeal by the plaintiff, Eliza Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 21st day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.
    
      
      Melville J. France [Abram H. Dailey with him on the brief], for the appellant.
    
      I. R. Oeland and Van Vechten Veeder, for the respondent.
   Hooker, J. :

The plaintiff was nonsuited. Her evidence tended to show that while a passenger upon one of defendant’s open cars a fuse, used in connection with the electrical appliances, blew out, and a ■ blaze enveloped 'the front of the car. Many of the passengers shouted, and the plaintiff, standing up in her seat to ascertain the cause of the commotion, became frightened, and in the melee was pushed and . thrown from the car to the street- by which she sustained serious injuries. . The case presents facts so nearly similar to those disclosed in Dorff v. Brooklyn Heights Railroad Co. (95 App. Div. 82; 88 N. Y. Supp. 463) that we should be content to direct a reversal upon the authority of that case and the cases there Cited in the opinion written by Mr. Justice Woodward were it not for the question of pleading raised upon the trial. The complaint alleges that owing' to the careless and negligent management of said car by defendant in putting oh too heavy a current or voltage of electricity a certain weak and insufficient fuse supplied and'made use of by the defendant, suddenly exploded with a loud report, setting free a heavy current of electricity whereby said car was, as plaintiff is informed and! believes, set on fire, and a large flame of tire and cloud of- smoke giving forth flames of burning material involved said car,” by reason of which the passengers became terrified and the plaintiff, thinking herself in peril, tried to escape, when she was by the violence of the crowd forced to the street and injured. - The complaint also alleges that the defendant failed suitably and properly to guard against such an occurrence by inclosing the fuse so that its explosion woul(l not-alarm and terrify the passengers and so as to prevent a conflagration of the car. Upon the trial, after proving facts which in the Dorff case and the cases therein cited were held sufficient to present a question for the jury, the plaintiff attempted to prove that the accident was the result of careless and negligent management of the car, but in this she palpably failed, and the learned court refused to submit the case to the jury on the ground that the allegations of the complaint were not sufficiently broad to allow .the subr mission of the question of defendant’s negligence upon the principle of res ipsa loquitur. The court took the view that the proof should be according to the allegations of the pleadings, and referring to the decision of the court, plaintiff’s attorney requested permission to amend the complaint in this and other particulars, so that it might allege that the fuse blew out. At another stage of the trial the court said to the plaintiff’s counsel: “ I am going to hold you, Judge, down to your complaint. The fact is that this complaint was drawn in ignorance of what question was really going to be tried when the case came up in court. This complaint was drawn without any knowledge of the subject it undertook to deal with.” To this he replied: “ I ask your Honor’s leave to amend my complaint then.” The court said: “No, I will not allow you to amend it. If there was something you tried to allege, and by a slip, of the pen did not get it quite right, I would allow you to do it, but you have alleged two things against the defendant and they are here to try those two things and nothing else, and you must recover on those two things or not at all.” Plaintiff’s counsel then stated that he excepted to the court’s refusal to allow him to amend.

While the requests to amend the complaint were not expressed as definitely as might be desired in regard to the particulars of the amendments sought, yet we believe no misunderstanding existed on the trial in view of the actual requests made, and in view of what took place there as to the particulars in which it was sought to remodel the pleading, and our opinion is that the court erred in refusing to grant the permission. The mere allegation that the fuse blew out and by reason thereof fire and flame proceeded from various parts of the car, which threw the passengers into violent commotion and resulted in plaintiff’s injury, was enough to throw the burden of explaining the cause of the accident upon the defendant. Nor would the defendant have suffered in the slightest degree by such an amendment. Section 723 of the Code of Civil Procedure provides in part as follows: “ The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the ease. * * * And in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.” (See, also, Code Civ. Proc. §§ 539, 540.) A question somewhat similar was discussed in Powell v. Hudson Valley R. Co. (88 App. Div. 133), where the plaintiff was injured by standing upon a hot iron plate on deíéndant’s car. It was there said by Mr. Justice Smith, writing for the court, in an opinion on which a judgment in favor of the plaintiff was sustained : “ In the complaint the negligence charged is in permitting the bearing upon one of the wheels to become overheated. The proof is not that the bearings were overheated, but that the plate over the wheel was overheated by reason of the friction caused by the plate being pressed down upon the wheel. The proof as to the exact cause of the accident was made by the defendant’s witnesses. This cause was known to them, and was not known to the plaintiff. To hold that her recovery upon this trial should be defeated through a variance which has in no way misled the defendant would be an unnecessarily strict application of the rules of pleading.” Prom the nature of the case the defendant must have come to court with at least as complete knowledge of the exact cause of the accident in which the plaintiff was in jured as the plaintiff herself, and where she showed facts sufficient to require the submission of the question to the jury a refusal of the court to allow her to amend her complaint to conform to the proof was error, because it is clear that the defendant could not have been prejudiced. '

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

All concurred.

Judgment reversed and new trial granted, costs'to abide the event.  