
    Michael Cunningham, Respondent, v. Michael J. Dady, Appellant, Impleaded with the City of New York, Defendant.
    Second Department,
    April 19, 1907.
    Negligence — muncipal corporations — caving in of street—res ipsa loquitur—erroneous charge.
    When the earth over or beside a trench which had recently been filled after the laying of water mains by, a municipality sinks in under the weight of a pedestrian, the doctrine óf res ipsa loquitur applies.
    But the presumption arising from said maxim does not cast upon the defendant the burden of proving by a preponderance of evidence that it was not guilty of negligence, and it is error so to charge.
    Appeal by the defendant, Michael J. Dady, from á judgment of the Supreme Court in favor of the plaintiff and against the said defendant, entered in the office of the clerk of the county of Kings on the 22d day of June, 1906, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of June, 1906, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Jerry A. Wernberg, for the appellant.
    ' Lmwiia lolly, for the respondent.
   Per Curiam :

The defendant laid water mains in a trench in a street for the city arid filled up the trench. While the plaintiff was afterwards walking over or by such filled in trench the- earth sunk under his feet and let his leg down into a hole up to his thigh. The complaint alleges that the'defendant did not fill the trench properly and restore the street to a safe condition. In his charge the learned trial judge applied to the case the maxim that the thing speaks for itself. He then charged that under that rule “ it is the defendant’s duty to prove by a preponderance of evidence that he was not guilty of the negligence of which he is accused.” The charge throughout is fraught with this unaccountable error. The presumption arising out of the said maxim was evidence which of itself carried the case to the jury, and it was for the defendant to meet that evidence, but the burden of proof was never on him, but from the beginning on the plaintiff. Jn a case in which the plaintiff has no evidence except such presumption, if at the close it does riot preponderate over the evidence for the defendant the plaintiff cannot recover. But there is no exception to this error; the exception is. only to the application of the maxim to the case at all. There being no leak in ' the pipe, or any. other cause for the cave-in, the maxim did apply, for if the trench had been properly filled it would not have caved in without some cause. There is some contention all through the case that the cave-in was not where the trench had been, but that fact was resolved against the defendant on sufficient evidence.. The dispute came down to a foot or less.

The judgment and order should be affirmed.

Present —HieschbeEg, P. J., Woodwaed, Jenks, Hookee and Gaynob, JJ.

Judgment and Order unanimously affirmed, with costs.  