
    Marie Dusenbury, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Negligence — presumption of — burden of proof on carrier—what is not appliance for transportation — evidence.
    Where personal injury results to a railway passenger from something improper or unsafe in the appliances of transportation, the burden of proof is on the carrier to show that such injury did not result from its negligence.
    Property belonging to and taken by a passenger into a railway ear is not an appliance for transportation.
    The mere fact that a piece of baggage is in the aisle of a car and a passenger stumbles over it does not per se raise any presumption of negligence on the part of the carrier.
    Where it is as probable that an injury to a railway passenger resulted from the act of a third person as from the negligence of the carrier, the ease should not be sent to the jury.
    Appeal by defendant from, a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff for $200 on the 31st day of January, 1916, after a jury trial.
    Ellis W. Leavenworth, for appellant.
    Bassett, Thompson & Gilpatric (W. H. Gilpatric, of counsel), for respondent.
   Cohalan, J.

Plaintiff sued to recover damages for personal injuries. It appears that she boarded a passenger train of the defendant at. East Orange, N. J., and, in walking up the aisle of the car, -tripped over a suit case that had been placed between two seats therein. In support of her allegation of negligence, the plaintiff attempted to prove that the defendant’s employees knew, or should have known, that the suit case was in the aisle, and should have removed it in time to have prevented the accident.

Plaintiff’s testimony and that of one Fisher was-, that as soon as the passenger train stopped at the station in East Orange she was the first passenger to go up the steps of the car, and enter that particular end of it; that no brakeman was standing at the car steps, by which she had entered; and that after she had gone a few feet she stumbled over a large suit case, which almost filled the aisle of the car. As against the plaintiff’s proof, the defendant showed by two witnesses that the plaintiff went up the steps of the car preceded by a man or boy with a suit case, and followed by the owner thereof. The defendant farther proved by the positive testimony of the witness Otis that the suit case was brought into the car at the same station at which the plaintiff got on, and that it was placed in the seat occupied by the witness, and left there with the end protruding about six inches into the aisle. This would indicate that the suit case was placed in the aisle without the knowledge of the defendant’s employees, and immediately prior to the accident. Where an injury results from something improper or unsafe in the appliances of transportation, the burden is on the carrier to prove that such injury- did not result -from its negligence. Property belonging to, and taken by a passenger into, a óar is not such an appliance. The mere fact that a piece of baggage is in the aisle and a passenger stumbles over it, does not per se raise any presumption-of negligence on the part of the railroad company. Burns v. Pennsylvania R. R. Co., 233 Penn. 304; Van Winkle v. Brook lyn City R. R. Co., 46 Hun, 564; Millie v. Manhattan R. Co., 5 Misc. Rep. 301. Where it is as probable that the injury resulted from the act of a third party, as from the negligence of the defendant, the case should not be submitted to the jury. There was an absence of proof of knowledge on the part of the defendant. The plaintiff was unable to adduce any proof with respect to the length of time that the suit case had been in the aisle, and the testimony of the witness, Fisher, does not aid her in this regard.

Guy and Whitaker, JJ., concur.

Judgment reversed, new trial granted, with thirty dollars costs to appellant to abide event.  