
    Joseph J. O’Donohoe, Jr., Respondent, v. Duparquet, Huot & Moneuse Company et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Negligence — Actions — Evidence — Presumptions and burden oi proof — Presumption of negligence from happening of accident — Accident not giving rise to presumption of negligence.
    Where plaintiffs automobile, lawfully standing at rest on the side of a street, was struck by a truck belonging to one of the defendants, which while being driven slowly and carefully was struck by a street railway car and as a result of the collision the automobile was damaged, the plaintiff, in an action to recover for such damage, has the burden of showing by a fair preponderance of evidence that the accident was due to the negligence of the owner of the truck.
    In such a case, the rule of res ipsa loquitur is not applicable; but, assuming it is, it will not operate to shift the burden of proof upon the truck owner to show that the proximate cause of the accident was the negligence of the defendants operating the railway, the owner of the truck being only bound to overcome any presumption of negligence on its part which, in the absence of explanation, might be inferred from the happening of the accident.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court qf the city of Mew York, fifth district, borough of Manhattan.
    Hollander, Bernheimer & Bemheimer, for appellants.
    Thompson & Fuller, for respondent.
   Guy, J.

This is an action brought by plaintiff, the owner of an automobile, which was injured as the result of a collision between a truck belonging to one of the defendants and a railroad car belonging to the other defendants. The evidence shows that the truck belonging to the defendant Duparquet Company was being driven slowly and carefully on the right-hand side of Madison avenue, between Fifty-fourth and Fifty-fifth streets, when it was struck by a railroad car of the defendant-receivers, the front of the car striking the rear wheel of the truck, whereby the truck was thrown against plaintiff’s auto, causing the injuries in question. The court rendered judgment in favor of the plaintiff against the defendant Buparquet Company, from which judgment this appeal is taken. In an opinion filed with the judgment, the court holds that the doctrine res ipsa loquitur applies as against the owner of the truck, in view of the fact “ that the defendant, the Duparquet Company, has failed to shoiu that the proximate cause of the accident to plaintiff's automobile was due to any negligence on the pari of the defendants Joline & Robinson (receivers of the defendant railroad company) • and, therefore, the former defendant and not the latter must be held responsible for the damages sustained by the plaintiff.” The principle, res ipsa loquitur, as very clearly enunciated in Breen v. New York C. & H. R. R. R. Co., 109 N. Y. 291, and again in Griffen v. Manice, 166 id. 188, has been stated as follows: “When the thing causing the injury is shown to be under the control of a defendant and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” Assuming that this • doctrine is applicable where a vehicle, lawfully standing at rest on the side of the street, is struck by a vehicle moving upon the street, in the absence of explanation as to the cause of the accident, it would not apply in a case like the case at bar, where there is no absence of explanation, but, on the contrary, positive proof introduced by the plaintiff as to the cause of the accident and the manner in which the accident occurred. The doctrine res ipsa loquitur not being applicable to this action, the burden rested upon the plaintiff of establishing, as in every other case of this character, by a preponderance of evidence, that the accident was due to the negligence of this defendant. This the plaintiff failed utterly to do. But were the doctrine res ipsa loquitur applicable to this case, the application of such doctrine would •not operate to shift the burden of proof by making it incumbent upon this defendant “ to show that the proximate cause of the accident to plaintiff’s automobile was due to any negligence on the part of the defendants Joline & Eobinson.” The sole burden upon the defendant Duparquet Company, even if the doctrine res ipsa loquitur were applicable, was to overcome any presumption of negligence on its part which, in the absence of explanation,” might be inferred from the happening of the accident. The defendant Duparquet Company was relieved from this burden by the plaintiff’s own evidence, which furnished a complete and detailed account of the cause of the accident and established that it might have occurred through the negligence of the other defendants. Under the decision in Elliott v. Brooklyn Heights R. R. Co., 127 App. Div. 300, this was sufficient. In my judgment, however, plaintiff’s evidence goes further and establishes as matter of fact this defendant’s entire freedom from negligence.

The judgment should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event.

S'eabury and Bijur, JJ., concur.

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