
    Margaret Gillick, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant. Michael Gillick, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Negligence — inference of, on part of railway company — when doctrine of res ipsa loquitur not applicable.
    Where while a passenger was sitting in a ear seat looking out of a window it suddenly broke, from' an unknown cause, and pieces of glass struck plaintiff in the face and eyes, and there is no reason to infer negligence on the part of the railway company, the doctrine of res ipsa loquitur does not apply.
    The defendant appeals from two judgments of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor' of the plaintiffs.
    Douglas Swift, for appellant.
    Frank X. Siillivan (Daniel F. Dunn, of counsel), for respondents.
   Seabury, J.

By stipulation two actions were tried together. The plaintiff in the first action sues to recover damages for personal injuries sustained while she was a passenger on one of the defendant’s trains. The plaintiff in the second action is the husband of the plaintiff in the first action, and sues to recover damages for the loss of his wife’s services resulting from the same accident. Both plaintiffs recovered judgments, and the sums awarded to the plaintiffs are conceded to be reasonable if the defendant is liable.

The plaintiff in the first action, while a passenger on one of the defendant’s trains, was sitting in a seat in the second or third car and looking out of the window. Suddenly there was a crash of glass and the window through which the plaintiff was looking broke, and pieces of the glass struck the face and eyes of the plaintiff.

The evidence fails to suggest the cause of the accident. The plaintiffs have recovered upon the theory that the doctrine of res ipsa loquitur is applicable to the facts of this case.

I think the learned court below erred in applying this doctrine. The doctrine is applicable only when the inference of negligence is required by the nature of the occurrence. It has no application when the res could have happened without negligence. Where some other cause than the negligence of the defendant could have caused the occurrence, there is no reason to infer that the occurrence was due to the negligence of the defendant. If the accident itself indicated that the accident was the result of the defendant’s negligence a different situation would be presented. The fact that the accident was of an unusual character does not of itself justify the application of the maxim res ipsa loquitur. See Robinson v. Consolidated Gas Co., 194 N. Y. 37.

Judgments reversed, with costs, and complaints dismissed, "with costs.

Guy and Bijur, JJ., concur.

Judgments reversed, with costs.  