
    Julia Lane, as Administratrix, etc., of Ambrose E. Lane, Deceased, Respondent, v. New York Contracting Company, Pennsylvania Terminal, Appellant.
    First Department,
    May 8, 1908.
    Master and servant — negligence — death by starting of tram cars — failure to show cause — res ipsa loquitur.
    Where, in an action to recover for the death of the plaintiff’s intestate, it appears that certain 'tram cars which were being loaded by his fellow-servants after standing for two hours ran down a slight incline and collided with another train of which intestate was engineer, and there is no proof as to what caused the cars to start, other than the fact that they had no brakes; it is mere conjecture as to whether the death was caused by the negligence of the defendant or that of the intestate’s fellow-servants, and a verdict for the plaintiff will be reversed.
    The doctrine of res ipsa loquitur as between employer and employee can rarely be invoked, and, under the circumstances, the burden was on the plaintiff to show the particular negligence which caused the cars to run away.
    Houghton and Scott, JJ., dissented.
    Appeal by the defendant, the New York Contracting Company Pennsylvania Terminal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1907, upon the verdict of a jury for. $16,500, and also from an order entered in said clerk’s office on the 8tli day of November, 1907, denying the defendant’s motion for a new trial made upon the lhiiuites, in an action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.
    
      John Conway Toole of counsel [ James A. Beering, attorney], for the appellant.
    
      Charles Steckler [Levin L. Brown with him on the brief], for the respondent.
   Clarke, J.:

Plaintiff’s intestate was an engineer employed by defendant in the Pennsylvania Terminal excavation in the city of New York, to ran one of its work trains, and while actually at work in that capacity was killed by a collision of his train with another train of similar character. The action is not under the Employers’ Liability Act.

There are two lines of narrow gauge temporary railroad tracks running east and west for construction purposes. These tracks were connected by crossovers and upon the north side there were spurs or sidings upon which the cars stood while being loaded by steam shovels and derricks. The cars were the ordinary dump cars without brakes. About seven o’clock in the evening there had been put upon one of these spurs, about Hinth avenue and Thirty-first street, which had a grade down to what may be called the main tracks, five cars for the purpose of being loaded and they were in the process of being loaded by a derrick which lifted the stones and lowered them into the cars. The derrick was called a double drum hoister. The accident occurred about nine-fifteen p. m. after these cars had so stood in the process of being loaded from seven o’clock. The decedent was on his engine which had attached to it seven or eight cars. He had taken-this train on the west-bound track to the river and he had come back, after dumping, with this empty train on the east-bound track. He crossed over to the west-bound track between Eighth and Hinth avenues to go onto the spur again. lie was pushing his cars on the west-bound track to go to a steam shovel and load rock over on this spur.. His engine was then in back of the cars; the cars were ahead of him. When he was going in there the cars got away on the hill and followed him down the hill and then he struck another loaded train between Seventh and Eighth avenues. His train was empty and the loaded train piled the cars on top of the engine and threw it off the track. The cars off the hill were loaded with rock. “ These loaded cars ran into the empty cars and his engine struck another engine which had a loaded train behind her at the foot of the incline or below the incline. It pinned him up so he could not go any further and the cars piled on top of the engine and broke the cab and the pieces got him under.”

There is no evidence as to what started these runaway cars nor is there any evidence as to how they were secured on the spur where they were being loaded. It does appear that they had no brakes.

The sole question submitted to the jury was whether reasonably safe appliances and machinery were furnished by the defendant.

I am inclined to think that the plaintiff has failed to sustain the burden of proof. What we,have is a train of cars being loaded which had remained in position for two hours while in process of loading which suddenly broke away and ran down the incline and caused the accident. While it may be said that cars without motive power do not ordinarily run away and, therefore, the fact that they did is some evidence of negligence, the difficulty is that that negligence may have been as well the negligence of coemployees in attending to the details of the work as the negligence of the defendant in not providing safe appliances. It would seem that the jury and this court are called upon to speculate as to the cause of the accident. The burden is upon the plaintiff to make out his/ case, to show that particular negligence which caused the cars to run away, and unless it can be said that under the circumstances the very act of running away made out a prima facie case ofnegligence of the defendant which called upon it to furnish proof of due care, why then the verdict cannot be sustained.

The doctrine of res ipsa loquitwr as between employer and employed can rarely be invoked. Here we have a train standing for two hours and it suddenly runs away. What caused it no one proves. The workmen who were loading the cars were undoubtedly the fellow-workmen of the engineer engaged in pulling the cars ; they were all engaged in the employment of the common master, engaged in the common work. It is elementary that a plaintiff must show what caused the accident, that it was due to the negligence of the', defendant, and that 1ns own negligence did not contribute thereto. He has shown the running away of the cars, but he has not shown the cause of that running away, the proximate cause of the accident.

The court declined to charge, at the request of the defendant, “ That if the jury believe that the car was started through some cause unknown to them, that they must find for the defendant: ” and also, “That unless the jury is able to determine from the evidence that the starting of the car was not caused by the negligence of a fellow-servant, that the plaintiff cannot recover; ” and also, “ That before the defendant can be held liable, they must find from the evidence that the cars were not secured in a reasonably safe manner.”

It seems to me that where no evidence had been adduced as to how the cars were secured, taken in connection with the fact of the length of time they had stood in the process of loading, and with no evidence of the cause of their starting, when the court declined these requests, when it is obvious that the accident might have been occasioned by the negligence of a coemployee, the jury were called upon to guess why and how the accident occurred.

Upon careful examination of the record this court must guess and cannot find how the accident occurred. In my opinion, the plaintiff has not sustained the burden of proof put upon her by the law. Upon this record she has failed to make out her case in the essentials required by the law.

It follows, therefore, that the judgment and order appealed from should be reversed and 'a new trial ordered, with costs to the appellant to abide the event.

Irgraham and Laughlir, JJ., concurred; Houghtor and Scott, JJ., dissented.

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