
    John Moglia, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Second Department,
    June 5, 1908.
    Negligence—injury by electric shock—res ipsa loquitur—trial — insufficient exception.
    Where it is undisputed that the plaintiff on a public street received an electric shock from a pole belonging to and únder control of the defendant, the rule Of res ipsa loquitur applies and. the burden is on the defendant to rebut the presumption of negligence.
    Where the defendant in an action for negligence has given no testimony and excepts specifically only to the refusal of the court to submit to the jury the question as to whether the defendant had notice of the condition of the appliance causing the accident, he caqnot contend upon appeal that the credibility of the plaintiff raised a question for the jury.
    Appeal by the defendant, The Nassau Electric Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of Kings On the 13th day of November, 1907, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 22d day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Henry M. Dater [George F. Elliott with him on the brief], for the respondent.'.
   Miller, J.:

This suit was brought to recover damages for personal injuries alleged to have been caused by an electric shock received by the plaintiff from one of the poles belonging to the defendant’s' trolley system. The defendant offered no evidence in explanation of the accident, and the trial court charged the jury that a presumption of negligence arose from the circumstances of • the accident which called, upon the defendant for explanation, and that the defendant having offered no explanation, the only question for the jury to consider was the amount of damages;

The appellant, contends that the jury was not bound to believe the plaintiff, and that it was for the jury to determine whether in fact he did receive an electric shock from the pole. There is evidence in the record tending to corroborate the plaintiff’s version of .the occurrence; but aside from that it was assumed on the trial by both sides that the accident happened in the manner testified to by the plaintiff. At the close of the charge the following colloquy occurred: “ [Defendant’s Counsel] : I would like to take an exception to that part of your Honor’s charge in which your Honor charged the doctrine of res ipsa loquitur. The Court: Suppose you put your request to me to charge in your own language and I will decline it and then you have your exception. [Defendant’s Counsel]: Tes. ■ Then I except to that portion of your Honor’s charge in which your Honor says that the only point in this case to be decided by the jury is the question of the amount of damages, and I ask your Honor to leave it to the jury as a question of fact whether or not the defendant had any notice of the condi-, tion of this pole. The Court: I refuse. [Defendant’s Counsel] : I except.”

Thus it will be seen that the specific point which defendant’s counsel sought to make by the exception was that the jury should be permitted to say whether the defendant had notice of the condition of the pole. If counsel desired to raise the question of plaintiff’s credibility, an appropriate request to charge should have been made, or at least an exception directed to that point should have been taken, and the question is not presented by an exception specifically directed to a different point.

It is also urged that even though the doctrine of res ipsa loquitur applied, it was still for the jury to draw the inference of negligence, even in the absence of any explanation by the defendant. In considering this question we must start with, the proposition that the circumstances of the accident are undisputed. The plaintiff in a public street received an electric shock from a pole belonging to and in the control of the defendant. So much is deemed established. From those 'facts a presumption of negligence arises. (Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51; Braham v. Nassau Electric R. R. Co., 72 id. 456.) In the Clarke Case (supra) Mr. Justice Bartlett said: The doctrine of res ipsa loquitur simply calls upon the defendant after proof of the accident to give such evidence as will exonerate him, if any there be, and relieves the plaintiff from the burden of proving the non-existence of an adequate explanation or excuse.” The proof of the occurrence and the surrounding circumstances, the “ res,” makes a prima faeie case, the legal presumption arising from such proof establishing prima facie the defendant’s negligence. (Kay v. Metropolitan Street R. Co., 163 N. Y. 447; Griffen v. Manice, 166 id. 188.) Now in the case at bar the facts from which the legal presumption arises are deemed established; therefore, the defendant was called upon to. offer some explanation of the cause of the accident consistent with the exercise of due care on its part. It was incumbent -upon the defendant either to dispute the facts from which the legal presumption arose, or to offer some evidence tending to rebut such presumption. A prima facie case must prevail unless there is some evidence to rebut it. (Heilman v. Lazarus 90 N. Y. 672; Spencer v. C. M. L. Ins. Assn., 142 id. 505.)

The judgment and order should be affirmed.

Present— Woodward, Hooker, Gayhob, Eioh and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  