
    Andrew J. Munzer, Respondent, v. The Interurban Street Railway Co., (Impleaded with Jasper H. Comstock), Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Error in charging that fact of injury creates presumption of negligence— Res ipsa loquitur.
    It is error to charge that because the plaintiff was injured “ while in the car in a place of comparative safety it creates an impression that the railroad company was guilty of negligence ”, in a case where the injury complained of was caused by a collision between a runaway horse and the defendant’s ear.
    Such charge gives the impression that the mere happening of' an accident creates a presumption of negligence as a matter of law, while, as there were two actors in the collision, it might have been due solely to the fault of one.
    
      Res ipsa loquitur discussed.
    The “ res ” includes a consideration of the attendant circumstances by the jury.
    
      Appeal by the defendant, The Interurban Street Railway Company, from- a judgment of the City Court of the city of iSTew York, entered in favor of the -plaintiff upon the verdict of a jury, and also from an order denying said defendant’s motion for a new trial.
    Henry A. Robinson (Bayard H. Ames and E. Angelo Gaynor, of counsel), for appellant.
    Maurice E. Fitzgerald, for respondent.
   Freedman, P. J.

The action was brought against the defendant-appellant and one Comstock to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the joint negligence of said defendants in permitting a collision to occur between a horse and wagon controlled by Comstock and a car of the railway company, in which the plaintiff was a passenger. The jury found a verdict against the railroad company only. The horse and wagon were being driven west through Sixty-third street as the car on Madison avenue approached said street in its northerly course. There was a puddle of water in' Sixty-third street about 120 feet east of the easterly crosswalk at Madison avenue. The horse shied at this puddle and immediately commenced to run and continued running in a westerly direction until it collided with the car of the railway company in which the, plaintiff was seated as the car was crossing Sixty-third street. Sufficient evidence was adduced at the trial to require the submission of the issues to the jury as against both defendants, but the verdict against the railway company cannot be sustained in the face of an error in the charge. The jury were charged as follows: “ He (the plaintiff) was a passenger on the street railway car of the defendant. The fact that the injury occurred to him while in that car in a place of comparative safety, creates an impression that the railroad company was guilty of negligence, because it was bound to exercise the highest degree of care to protect its passengers, it being a common carrier for hire. The railroad company seeks to overcome that presumption by showing that, at the time, this car was operated in the usual way, that it was running at the usual rate of speed, that the motorman in charge of the car had no notice of the presence of any danger or that anything extraordinary was going to occur, and while he was in control of this car this horse suddenly dashed out and ran into the side of the car; that he brought his car to a stop as soon as he could, and that therefore it claims it was not guilty of negligence.

“ Gentlemen, if you believe that, then they have overcome the presumption of negligence and shown a freedom from negligence which will entitle them to receive a verdict at your hands.”

By this instruction the jury were told that the mere hapr pening of the accident, as a matter of law, created an impression or presumption that the railway company was negligent and that the burden of proof was cast upon it to overcome it. Upon the facts of this case this was erroneous. There were two actors in the collision, the motorman of the car and the driver of the horse and wagon. It was entirely .possible, and also entirely probable, that the collision might have been due solely to the fault of one of the parties, and that the other might have been in ho way to blame. Therefore, the presumption of negligence arising from the accident did not tend to inculpate either party, and consequently it was for the jury to decide, as a question of fact whether under the circumstances of the case the happening of the /collision showed negligence on the part of the motorman. Upon that question the burden of proof, remained with the plaintiff. As was said in Goodkind v. Metropolitan St. R. Co., 93 App. Div. 153, even where the maxim of res ipsa loquitur is applicable, there must still be a finding of negligence by the jury based upon competent evidence to entitle the plaintiff to a verdict, and the question as to whether negligence existed is" a question which must be determined by the jury, and not by the court as a matter of law.

Writing of res-ipsa loquitur it is said in Shearman & Redfield on Negligence (§ 59) : “ It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing-how the accident occurred, contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.”

The " res” therefore, includes the attendant circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence. The maxim is also in part based on the consideration that where the management and control of the thing which has produced the injury are exclusively vested in the defendant, it is within his power to produce evidence of the actual cause of the accident, which the plaintiff is unable to present. Griffen v. Manice, 166 N. Y. 188.

In the case at bar, there can be no pretense that the thing which produced the injury, was in the exclusive management and control of the railway company. On the contrary, the horse which primarily caused the accident, was under the management and control of Comstock. To make the defendant liable the plaintiff was bound to establish that the motorman of the car should and could have perceived the danger in time and avoided it. Under the circumstances of this case, therefore, the above instruction to the jury presents reversible error.

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

Bischoff and Gildersleeve, JJ., concur.

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