
    Holbrook and wife against The Utica and Schenectady Railroad Company.
    Whore a. passenger on a railroad is injured, the burthen of. proving that the injury was caused by the negligence of the railroad company or its servants rests upon the party seeking to recover damages therefor.
    The mere fact that a person is injured: while riding in a railroad car does not impose upon the company the burthen of disproving negligence.
    But the presumption of a. want of proper care on the part of the company may arise from circumstances attending the injury, and in such cases the. onus is upon the company to show that the injury is not attributable to any fault on its part.
    The refusal of a judge to charge the jury as particularly requested-is not error, where he had previously charged: them in substance as requested.
    Action to recover damages for an injury sustained by Mrs. Holbrook while a passenger in the- cars of the defendant. The. complaint- alleged that in. May, 1849, Mrs.. Holbrook was a passenger on the defendant’s cars between Utica and Schenectady, and when within three or four miles, of Little Falls, as the train was going east, the car in which she was riding, by the carelessness of the defendant, came partly in contact with another car of the defendant, which was standing on the railroad track of the defendant, north of that upon which she-was riding, and a board or stick or ' other hard substance, by and through the carelessness and negligence of the defendant, was projecting from and in some manner connected with the car so standing on the north track; and as the car in which Mrs. Holbrook was riding was passing the car standing on the north track, the board, stick or other hard substance came violently in contact with her elbow and severely fractured it. The answer put in issue all the material allegations of the complaint. The cause was tried in March, 1852, at the Albany county circuit, before Justice Wright.
    The plaintiffs proved that while Mrs. Holbrook was a passenger riding in the - defendant’s car in a train passing-easterly, at a point a few miles west of Little Falls, and was sitting on- the northerly side of the car with her elbow resting on the sill of the window, which was raised, something struck with violence against the side of the car in which she was riding, striking and seriously injuring her elbow. It- was proved that this- collision occurred directly opposite where some cars were standing on the north track of the road, a few feet from the track on which the train was passing east. These stationary cars were then used to board and lodge workmen employed'by the defendant-in 'repairing the north "track of the road; a family occupied one, another-was used as a store room, and a third for cooking the meals of the workmen; the door of one of the cars opened outside towards the track upon which the train was passing. There were found, immediately after the accident, a horizontal mark and several indentations .upon the north side of the car in which Mrs. Holbrook was riding, as though some hard substance had struck-against it; one of these indentations was upon the side of the car at the window where she was- sitting,- and' the mark- extended across the lower casing of the window to near the inside of it. It was further proved that whatever it was which came in contact with the car, struck and brushed against other passengers sitting at two other windows in the north side of the same car in which Mrs. Holbrook "was riding. There was no other evidence as to what caused the injury to Mrs. Holbrook or what it was that came in .contact with the car, when the plaintiff rested.
    Thereupon the counsel for the defendant moved the court to nonsuit the plaintiffs on the grounds: 1. That to sustain the action the plaintiffs were bound to prove that the injury happened by the fault or negligence of the defendant or its agents; 2. That the evidence given did not show that the negligence or fault of the defendant or its agents had in any way caused or contributed to the injury complained of, and that the defendant was in no way connected with the injury to Mrs. Holbrook. The justice refused to nonsuit the plaintiffs and the counsel for the defendant excepted.
    The engineer in charge of the train in which Mrs. Holbrook was riding was sworn as a witness on behalf of the defendant, and testified that he saw nothing projecting from the boarding cars when he passed them, nor was there anything which he saw upon the road which did or could come in contact with the train; that the boarding cars had been standing there several weeks. Other witnesses were examined, whose evidence showed that the door of one of the stationary cars opened out towards the south track and was not kept fastened, but tended to prove that it was shut when the passenger train passed. There was also evidence given on the part of the defendant tending to show that Mrs. Holbrook’s elbow, at the time of the injury, was not resting on the sill of the car window but that' it then projected outside of the car.
    At the close of the evidence the counsel for the defendant renewed his motion that the plaintiffs be nonsuited on the same grounds above stated; the motion was denied and he excepted. He also requested the justice to rule and decide that there was not sufficient evidence, tending to prove that the injury complained of was occasioned by any negligence or omission on the part of the defendant, to be submitted to the jury, and that for this reason the plaintiffs were not entitled to recover; the justice declined to so rule and decide and the defendant’s counsel excepted. The justice charged the jury that to entitle the plaintiffs to recover they must be satisfied by the evidence that Mrs. Holbrook was injured through the negligence of the defendant or its servants ; that if negligence or want of ordinary care on the part of Mrs. Holbrook contributed in any degree to the result, the plaintiffs could not recover ; that to entitle them to recover, the jury must be satisfied from the evidence, not by speculation, that the negligence of the defendant or its servants alone caused the injury; that the defendant only contracted to carry her safely when she kept within the car: and that it was a question for the jury to decide, upon the evidence, whether or not her elbow was outside of the car when it was injured, and if it was, then it was a fact from which they might infer negligence or want of ordinary care on her part.
    The counsel for the defendant requested the justice to charge the jury as matter of law that if they found that Mrs. Holbrook’s arm or elbow was outside of the window of the car when the injury was received, it was an act of negligence on her part and the plaintiffs could not recover; the justice refused to so charge and defendant’s counsel excepted. There was a verdict and judgment in favor of the plaintiffs for $800 damages. This judgment was affirmed by the supreme court sitting in the 3d district. The defendant appealed to this court.
    
      John H. Reynolds, for the appellant.
    I. It was not shown how the injury was occasioned, further than that it was caused by something proceeding from the outside of the car, with which the defendant was not proved to have been in any way connected. Nor was it shown what thing it was that produced the injury.
    II. Negligence cannot be inferred, except from wrongful or unauthorized or negligent acts; and none such in this case were proved. (1 Cow. & Hill's Notes, 306; Best on Ev., 189 (66 Eng. Ch.); 1 Hill, 273; 7 Hill, 544.) There was not evidence on the question of the negligence of the defendant sufficient to be submitted to the jury. The jury were not authorized to find a verdict for the plaintiffs on that evidence, and a nonsuit should have been granted. (Haring v. The N. Y. and Erie R. R. Co., 13 Barb., 9; Spencer v. The N. Y. and Erie R. R. Co., 5 Barb., 337.)
    III. The onus of proof on the question of negligence was upon the plaintiffs. The defendant had nothing to prove or answer for, until by some evidence, and not mere speculation, it was shown to have been in fault, and that the fault proved had contributed to the injury. 1. The rule casting the onus probandi on the carrier in case of accidents happening by a defect of track, or by breaking off, or some imperfection of a vehicle, cannot be applied to this case, so that from the fact of the injunj alone, upon the road of the defendant, negligence will be presumed. 2. That rule is applicable only to cases where the accident and injury are shown to be directly connected with something exclusively within the control of the defendant; such as the breaking of a car, defect in the road, or something of that description. That rule does not properly apply to a case like this, where the injury to the plaintiff is shown to have been occasioned from something outside of the car, not shown to have been connected with the road, and with which the defendant has no concern. 3. The reason assigned for casting the onus on the carrier, in the cases referred to, has no application to such a case as this, because the plaintiff’s means of knowledge as to what caused the injury is as great as that of the defendant—neither being able to show how it happened.
    IV. The refusal of the judge to instruct the jury, as a matter of law, that if they found that if the plaintiif’s elbow or arm was outside of the window of the car when the injury was received, it was an act of negligence, and she could not recover, was manifestly erroneous.
    There was evidence which would have authorized the jury to find that fact; and if found, the law pronounced it an act of negligence, which contributed to the injury. (Laing v. Colder, 8 Barr, 479.
    
      R. W. Peckham, for the respondents
    I. The testimony clearly proved that the negligence of the company caused the injury. The proof showed that the injury was caused by the car coming in contact with some obstruction from the boarding cars that were standing on the adjoining track. Whether it was some part'of the door swinging open, not fastened, that came in contact with the passenger car, or some projecting board from the boarding car, is not material to inquire. There was evidence from which the jury were authorized to find that the injury was caused by a door of the boarding cars standing open, or something else left carelessly projecting from them.
    II. The defendant is responsible for negligence in the management of these boarding cars. (Angell on Carriers, 523, 535, 566, 546.)
    III. The respondents having proved that Mrs. Holbrook was injured while sitting in the ordinary way in the car, from a concussion with some external force, the onus of proving the particular cause, and that the appellant was free from negligence, rested on it, and not on the respondents. 1. That this is the well settled rule in regard to stages, cannot be denied. (Christie v. Griggs, 2 Camp, 19; Stokes v. Saltonstall, 13 Peters, 181; McKinney v. Neil, 
      1 McLean, 540; Angell on Carr., § 569; ib. 566; 2 Greenleaf’s Ev., § 222; Story on Carr., § 601.) 2. The reason of the rule applies with far greater force to railroads than to stages. (Angell on Carriers, § 538.) The former are under the exclusive and absolute control of the company; their machinery and their management are far less understood by the public; their power and speed far greater; their slightest mismanagement far more dangerous and fatal. They should be held, then, more strictly to explain the cause of the injury and their freedom from negligence. (Carpue v. The London and Brighton Railroad Co., 5 Ad. & Ellis, N. S., 747.)
   Ruggles J.

In actions like the present, the burthen of proving that the .injury complained of was caused by the defendant’s negligence lies on the plaintiff. The same rule applies as in an action for an injury to a passenger in a stage coach. It. generally happens, however,, in cases of this nature, that the same evidence which proves the injury done, proves also the defendant’s negligence; or shows circumstances from which strong presumptions of negligence arise, and which cast on the defendant the burthen of disproving it. For example: a passenger’s leg is broken while on his passage m a railroad car. This mere fact is no evidence of negligence on the part of the carrier until something further be shown. If the witness who swears to the injury, testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumption of negligence immediately arises; not however from the fact that the leg was broken, but from the circumstances attending the fact. On the other hand, if the witness who proves the injury swears that at the moment when if happened he heard the report of a gun outside of the car, and found a bullet in the fractured limb, the presumption would be against the negligence of the carrier. It is incorrect therefore to say that the negligence of the carrier is to be presumed from the mere fact that an injury has been done to the plaintiff. The presumption arises from the cause of the injury or from other circumstances attending it, and not from the injury itself.

The defendant contends, in the present case, that there was no circumstance attending the injury to the plaintiff' from which any presumption of negligence on the part of the defendant can fairly be raised. But this proposition cannot be maintained. The boarding cars were placed on the adjoining track by the defendant, and were occupied by workmen in its service. . The plaintiff's arm was broken at the moment when the passenger car in which she sat was opposite the boarding car. The long horizontal mark on the car, and other circumstances, show that the injury could not have been produced by a stone thrown against the car by any person outside. The object which was the immediate cause of the injury, must, from the mark it left on the car, have been of great strength and of considerable size. It must have been firmly fixed in its position. The shock of its first contact with, the car would otherwise have thrown it off; instead of that, it remained upheld in its position until it had passed three windows of the passenger car, protruding to some extent into each. There was nothing except the boarding cars to which the thing which caused the injury could be attached. These circumstances are convincing proof of its connection with one of the boarding cars; they cannot be accounted for on any other hypothesis. It was the duty of the defendant and its agents to keep the narrow space between the boarding cars and the passenger train clear and free from obstruction; this was not done; and although the immediate cause of the injury cannot be ascertained, this is the misfortune of the defendant and not of the plaintiffs. The burthen of showing that the injury was accidental and without fault of the defendant lies, under the circumstances above stated, on it. For this purpose its local superintendent went to the boarding cars to ascertain the cause of the injury. But he does not state that he made inquiry of the people in or about those cars; or that he examined the swinging door of the store-house car by which the accident may have been occasioned, for the purpose of ascertaining whether it bore marks of the collision. The case therefore was left to stand solely on the presumption that the collision took place with some object connected with the boarding cars, negligently and wrongfully placed or left by the defendant’s servants in a position to cause the injury complained of. This was a strong and rational presumption, sufficient to carry the case to the jury, and the judge, therefore, rightly denied the motion for a nonsuit.

The judge charged the jury, among other things, that to entitle the plaintiffs to recover, they must be satisfied from the evidence that Mrs. Holbrook had been injured by the negligence and want of care of the defendant, its agents or servants, and that they must be satisfied from the proofs, not from speculation, that the defendant’s negligence alone caused the injury; that if the negligence or want of care of the plaintiff contributed at all to the result, she could not recover; that the company only contracted to carry her safely when she kept within the cars ; that it was for the jury to say whether her elbow was,out of the cars at the time of the injury, and if it was, it was a circumstance or fact from which they might infer negligence or want of ordinary care on her part.

The judge was then requested by the defendant’s counsel to charge, as matter of law, that if they found that the plaintiff’s arm or elbow was outside of the window of the car when the injury was received, it was an act of negligence and she could not recover; but the judge refused to charge on that subject other than he had charged, to which refusal the defendant excepted.

In this refusal to charge as requested I was at first inclined to think there was error. But my brethren are unanimously of opinion that the judge had already charged the jury substantially in conformity with the request; and that he was right therefore in declining to repeat what he had before stated. I yield to their judgment on this point and concur in affirming the judgment.

Crippen, J., also delivered an opinion in favor of affirmance.

Judgment affirmed.  