
    Hyland P. Rice, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Negligence—Burden of proof — When erroneous charge cured.
    A charge to the jury, in an action to recover for personal injuries, that “ the burden of showing that the accident did not happen through the defendant’s negligence is upon the defendant ”, is erroneous, but is cured by a subsequent charge that “ while the law calls upon the defendant, under such a condition as the plaintiff claims existed here, to explain, yet on the whole case, the burden is upon the plaintiff in the end to convince the jury that the accident occurred through the negligence of the defendant ”.
    MacLean, J., dissented.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city; of Few York, tenth district, borough of Manhattan.
    William E. Weaver, for appellant.
    Wales E. Severance, for respondent. '
   Scott, J.

If the case had gone to the jury solely upon the colloquial charge to the effect that “ the burden of showing that the accident did not happen through the defendant’s negligence is upon the defendant,” it would be open to defendant to claim that the jury were wrongly instructed. Maher v. Metropolitan St. R. Co., 102 App. Div. 517. The court, however, afterward charged, at plaintiff’s request, that “ while the law calls upon the defendant, under such a condition as the plaintiff claims existed here, to explain, yet on the whole case the burden is upon the plaintiff in the end to convince the jury that the accident occurred through the negligence of the defendant.” This was a perfectly correct statement of the law (Maher v. Metropolitan St. R. Co., supra), and cured any error in the colloquial charge. The defendant did not clear itself of negligence, the evidence justified the verdict and its amount was moderate.

The judgment should be affirmed, with costs.

Dugko, J’"., concurs.

MacLean, J.

(dissenting). The plaintiff claimed that while on the rear platform of one of the defendant’s cars, and as he was about to alight, he received an electric shock thereon and sustained injury. Under the decision in D’Arcy v. Westchester El. R. Co., 82 App. Div. 263, the rule of res ipsa loquitur applied, but the defendant contends that it was error to charge: “ This is one of the cases in which the mere happening of the accident places upon the defendant the burden of explaining it and showing it did not happen through the negligence of the defendant. Ordinarily, that bu rden is upon the plaintiff, but in this case the burden of showing that the accident did not happen through the defendant’s negligence is upon the defendant.” The exception of the defendant thereto must needs he sustained un,(der the authority of Maher v. Metropolitan St. R. Co., 102 App. Div. 517, and the judgment rendered upon the verdict of the jury in favor of the plaintiff he reversed and a new trial ordered.

Judgment reversed and new trial ordered, with costs to appellant- to abide the event.

Judgment affirmed, with costs.  