
    Charles Flansburg, Appellant, v. New York Contracting Company — Pennsylvania Terminal, Respondent.
    First Department,
    February 4, 1910.
    Railroad — negligence—injury to brakeman by derailment of train — facts justifying recovery— res ipsa loquitur.
    Action to recover for injuries received by a brakeman who was employed on work trains used to carry materials from an excavation. The train on which the plaintiff was working left the track and he was caught between two cars. There was evidence that there had been derailments of trains at this particular point every few days for a considerable period of time, and the plaintiff gave evidence that the tracks were laid upon a hed of ashes, though this was con, tested by the defendant. On all the evidence, held, that a judgment for the plaintiff should be affirmed.
    McLaughlin, J., and Ingraham, P. J., dissented, with memorandum.
    Appeal by the plaintiff, Charles Flansburg, from an order of the Supreme Court, made at the ¡New York Trial Term and entered in the office of the clerk of the county of ¡New York on the 27th day of January, 1909, setting aside the verdict of a jury in favor of the plaintiff for $5,500, and granting the defendant’s motion to dismiss the complaint made at the close of the evidence, upon which the court reserved decision until the coming in of the verdict, and also (as stated in the notice of appeal) from a judgment entered in said clerk’s office on the 6th day of February, 1909, dismissing the complaint.
    
      Thomas J. O'Neill, for the appellant.
    
      John- Conway Toole, for the respondent.
   Miller, J.:

The plaintiff 'was employed as a brakeman on one of the defendant’s work trains in the Pennsylvania terminal excavation between Seventh and Tenth avenues and Thirty-first and Thirty-third streets in the borough of Manhattan. These trains were used to haul the excavated material to the dock on the river. For- that purpose am excavation was made for two main tracks, running east and west, and from the main tracks there were side lines running to the derricks and shovels. While it is claimed by the defendant that the main tracks were frequently changed, they are referred to by one of the defendant’s witnesses as permanent, and there is testimony that they had been in- use for from six months to a year before the accidént. The side tracks were shifted frequently. Thirty loaded trains a day went over the main tracks. A loaded' train of' seventeen cars, with engines ahead and behind, was proceeding West on tlie'main track at about seven miles an hour when some of the cars left the track, the train buckled and the plaintiff was caught between the rear car. and the engine, sustaining the injuries for which he seeks to' recover.' At the place of the derailment the track was level and straight. ' While there is some dispute as to the exact spot of the derailment, all agreed that it occurred in the vicinity of Eighth avenue, and there is abundance of evidence to show that derailments frequently occurred on that track in that locality. The plaintiff testified that, a week before the accident, there was a derailment there, caused by the spreading of the rails; that more ashes were put under the ties and the rails spiked to them again. While he undertook to testify that the rails spread at the time of the accident in question, at the best, that testimony could only have been based on inference, as he admits that he was rendered unconscious by the accident. A witness, called by the plaintiff^ testified: “ Once in a while I have seen them go off in that locality. * * * 1 have seen trains derailed before this in this cut; might be 50 to 100 feet, 200 feet away, on that same piece of line, or a couple of hundred feet away, some of them 50 feet away. Yes, they are liable to go off, they undoubtedly went off.” The defendant’s yardmaster, called by it, testified: “ Q. How often before this accident did the cars leave the trade when west bound, immediately in the neighborhood of Eighth Avenue ? A. Might be a couple of days without it. Q. A couple of days without them going off? A. Yes, sir. Q. But every couple of days they would go off? A. Maybe a week sometimes. Q. But every couple of days or. a week, they would go off? A..Every couple of days they would. Q. Every couple of days or a week, you said first a couple of days ? A. What do you mean, the side tracks or the main tracks ? Q. The main tracks ? A. Might go a month or six months on the main track without going off. Q. I am not asking about what it might do, what did they do? A. We have had them there three years and they have not been off on parts of the main tracks.” He also admitted seeing the track foreman - measuring the tracks at the place of the' accident with a track gauge, and, in view of his confused and contradictory statements on that subject, the inference is fairly justified that the gauge was thus being used after the accident, and because of repairs made necessary by it. The track foreman was not called as a witness by the defendant. The one witness, called by the defendant, who could distinctly testify that he made an examination of the tracks after the accident was the day superintendent. He testified: “ I made an examination of the track; the track gang came and we placed the cars back on the track, and there may have been-some minor repairs, such as the wheels of the cars may have been loosened up, a rail or something, and they fixed it at the time and the train went on up.” The plaintiff testified that, during the week preceding the accident, the cars rocked sideways and up and down, and that the tracks were laid on a bank of ashes and cinders three or four feet high. He is to some extent corroborated by an apparently unwilling witness who admitted that the ties were laid on ashes. The defendant’s evidence is to the effect that the ties were laid on the solid rock, and that the cinders were used for tamping. It is suggested by the testimony of witnesses for the defendant that the derailment may have been due to the shifting of the load on a ear or to a rock falling from a car upon the track. Where a train moving at the, rate of seven miles an hour is derailed on a straight, level track, but little evidence is needed to point to a defective condition of the tracks as the cause of the accident. That evidence was supplied by proof of frequent, similar prior occurrences, some of them shown to have been due to a spreading of the rails. While I think that the weight of the evidence shows that the ties were laid on rock and tamped with cinders, the plaintiff’s evidence presented a question. for the jury whether the tracks were not laid on a bank of ashes and cindeits three or four feet high, and a jury would certainly be. justified in saying that that was not a safe method of track construction. It may be that there is no direct and positive testimony that the rails spread at the. time of this accident, but the testimony of the only witness, produced by the defendant, who distinctly swears that he saw the tracks after the accident, is at least suggestive of that as the cause; and when considered in connection-with the circumstances of the accident and the prior occurrences, I think justifies the inference that in fact the rails did spread, thereby causing the accident. Of course, the defendant was not obliged to furnish such a roadbed as would be needed for heavy trains running at high speed, but it was obliged to use reasonable care to provide a reasonably safe place for its men to work; and it seems to the that reasonable care would have prevented the almost daily derailment of its trains. The fact of the derailment where the roadbed was defective justified the jury in assigning the cause of the derailment to the defective condition of the roadbed. The rule res ipsa loqtdtur does not apply for the reason that the happening may have been due to causes other than the defendant’s negligence, e. g., the shifting of the load or the falling of a rock from a car onto the tracks, but the possibility of such other causes did not require the plaintiff to absolutely negative them. I think the evidence presented a fair question of fact as to whether the defendant’s negligence was the cause of the accident.

The question of the plaintiff’s assumption of risk was not submitted to the jury although it was an important element for 'Consideration. In view of that and other circumstances, not necessary to comment upon, I think the order appealed from should be modified by striking out the provision dismissing the complaint, by directing a new trial and, as thus modified, affirmed.

. Laughlin and Dowling, JJ., concurred ; Ingraham, P.- J., and McLaughlin, j., dissented.

McLaughlin, J. (dissenting):

The evidence did not in my opinion justify a finding that the accident was due to the negligence of the defendant, nor was it of such probative force as justified an inference that the cars were derailed by the spreading o£ the tracks. One might guess the accident was caused in that way, but whether it was or not is a matter of pure speculation. Before a plaintiff is entitled to recover damages for an injury sustained on account of a defendant’s negligence, evidence must be produced from which the cause of the accident can be determined with a fair and reasonable degree of certainty, and also that such cause was due to some negligent act, either of commission or omission, on the part of the defendant. Here the cause of the accident is not disclosed, nor is there anything to indicate in what respect the defendant failed to perform its duty or obligation to the plaintiff.

For these reasons I dissent from the prevailing opinion and vote to affirm the order without modification.

Ingraham, P. J., concurred.

Order . modified as stated in opinion, and as modified affirmed, without costs. Settle order on notice.  