
    HORACE KELSEY, Respondent, v. HUGH J. JEWETT, Receiver, etc., Appellant.
    
      jEvidence — the plaintiff must show that the defendants negligence caused, the injury.
    
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Livingston Circuit, and from an order denying a motion for a new trial made on a case and exception.
    This action was brought to recover damages for injuries to the plaintiff’s person, alleged to have been caused by the negligence of the defendant’s employes in charge of a train at a railroad crossing in the town of Caledonia. The plaintiff gave evidence at the trial tending to show that, when the train approached the crossing, the •bell was not rung or the whistle sounded for eighty rods preceding the crossing. The judge charged the jury as follows: “ If you find that the signal was not given, you have a right to infer that the omission was a negligent act of such a character as will throw the burden of proof, so far as that question is concerned, upon the defendant to show to your satisfaction-that the omission to ring the bell was, under the circumstances, an act of prudence, and that it did not produce the injuries complained of.”
    The court at General Term said: “ The case of Held v. The New York Central and Hudson River Railroad Company, decided by us in April, 1881, an abstract of which is published in 12 New York Weekly Digest (p. 163), is an authority for the position that the charge was erroneous. The burden was upon the plaintiff to show pot only an act of negligence on the part of the defendant, but also that such negligence produced the injury.” Lamb v.. The Camden and Amboy R. R. Co., 46 N. Y., 271; Heinemamn v. Hurd, 62 id., 448.)
    
      Sprague, Millburn do Sprague, for the appellant.
    
      J. B. Adams, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ.,- concurred.

Judgment and order reversed and new trial ordered, costs to abide event.  