
    James W. Corbally, Appellant, v. The Erie Railroad Company, Respondent.
    
      Negligence —propulsion of cars without a locomotive over a railroad crossing without gate, flagman, hell or other safeguard.
    
    The propulsion, over a railroad crossing in a city, which, crossing was not provided with any gate, flagman, bell or other safeguard or warning to admonish pedestrians of danger, of a number of freight cars wholly unattended and not attached to any locomotive, if unexplained, clearly and affirmatively establishes negligence on the part of the railroad company.
    Appeal by the plaintiff, James W. Corbally, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 8th day of April, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John C. Robinson, for the appellant.
    
      Charles Mao Veagh, for the respondent.
   Hirsohberg, P. J.:

The cause of action is for personal injuries sustained by the plaintiff. He was run over by a train or a portion of a train while crossing Twelfth street, one of the public streets in Jersey City intersected by the defendant’s tracks. The learned trial justice granted the defendant’s motion to dismiss the complaint at the close of the plaintiff’s case, saying: “ If there was a scintilla of evidence here of negligence on the part of the defendant, I should be disposed to send it to the jury, but I do not see that there is, so I think I must grant the motion.” It may be assumed that the question of the plaintiff’s contributory negligence could not have been disposed of as a matter of law, an assumption which the record fully justifies, and the only point to determine, therefore, is the correctness of the ruling that no facts were disclosed tending to establish negligence on the part of the defendant.

It is alleged in the complaint and admitted by the answer that at the. time of the occurrence the defendant was “ a common carrier, maintaining and operating a steam railroad in Jersey City, County of Hudson and State of Hew Jersey, along and across certain public streets, thoroughfares and highways of said city, including Twelfth street therein, together with the cars running over the same and the tracks and other appurtenances connected therewith.” The plaintiff was in the act of crossing Twelfth street in the morning of June 11, 1899, when the accident occurred. There were three tracks to cross. On the second track a number of box cars were standing at the plaintiff’s right hand, and on that side there was a curve which, together with the stationary cars, obstructed the view to the right, except for a distance of about 125 feet. When the plaintiff reached the third track a freight train came along from the right, and after it had passed he endeavored to cross that track when four cars joined together, but without a locomotive and wholly unattended, came along rapidly and struck him down, occasioning the injuries of which he complains. There was no gate, flagman, bell or other safeguard or warning to admonish a pedestrian of danger or ward him from contact or collision with the cars which were thus run upon the defendant’s tracks, without engineer, conductor or brakeman.

1 cannot see why the circumstances were not sufficient to justify and, unexplained and uncontradicted, to compel the conclusion that the defendant was negligent in the operation of its road. Hone of the cases cited by the learned counsel for the respondent holds that it is not sufficient evidence of negligence to establish that cars have been propelled across a city street with no one upon or in control of them.. It may possibly be, of course, that the operation of the cars in the manner stated was due to causes beyond the defendant’s control and for which it was not legally responsible, but the. inference to be deduced from the unexplained fact is otherwise. It was early held by the Court of Appeals in Holbrook v. Utica & Schenectady Railroad Co. (12 N. Y. 236) that the presumption of a want of proper care on the part of a railroad company may arise from the circumstances attending the accident,, and that in such cases the onus is upon the company to show that the injury is not attributable to' any fault on its part. The general principle was reiterated in Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297), the court saying (p. 300): “ There must be reasonable evidence of negligence, but 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.” To the like effect is the recent case of Griffen v. Manice (166 N. Y. 188) in which the principles underlying the doctrine of res ipsa loquitur were carefully considered and determined. It is unnecessary to invoke that doctrine, however, in this case, as the proof of the occurrence, unexplained and uncontradicted, clearly and affirmatively establishes the defendant’s negligence.

The case of O’Bierne v. N. Y. C. & H. R. R. R. Co. (37 App. Div. 547) seems quite in point. There a person driving upon a city street was injured by collision with a single detached car. There was no brakeman on the car or flagman at the crossing. The court held that & prima facie case of negligence on the defendant’s part was clearly made out, and the decision was affirmed by the Court of Appeals (167 N. Y. 568). (See, also, Brown v. N. Y. C. R. R., 32 N. Y. 597; Bowen v. N. Y. C. & H. R. R. R. Co., 89 Hun, 594; Delaware, etc., Railroad v. Converse, 139 U. S. 469.)

The judgment and order should be reversed.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  