
    Annie Dean, Respondent, v. Tarrytown, White Plains and Mamaroneck Railroad Company, Appellant.
    Second Department,
    June 8, 1906.
    Uegligence — passenger injured while alighting from a surface car . during electrical disturbances — erroneous charge. .
    The plaintiff was injured while trying to escape from an electric dar during electrical disturbances caused by the breaking of a guard wire which protected the wire carrying the current, causing a contact with the hood of the car.
    
      Inter alia the plaintiff pleaded that the car was defective, but no proof- of a defect in the car" itself was given.
    
      Held, that it was reversible error to refuse to charge that there was no evidence to warrant the jury in finding that the accident happened from any defective construction of the car. '
    Appeal by the defendant, the Tarrytown, White Plains and Mamaroneek Railroad Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the Í6tli day of May, 1905, upon the verdict of a jury for $1,375, and also from an. order entered in said clerk’s office on the 1st day of June, 1905, denying the defendant’s .motion for a. new trial made upon the minutes.
    
      Bayard H. Ames [Henry A. Robinson and James L. Quackenbush with him on the brief], for the appellant.
    
      Winfield L. Morse, for the respondent.
   Jenks, J.:

The plaintiff complains that the defendant’s street surface electric trolley car, in which she was a passenger, became unmanageable, part of its mechanism exploded, blew up or was burned out, flames and sparks of fire appeared, loud reports were heard, the car oscillated violently, its lights went out, and that when,. terror stricken, she sought to escape out of the car she was thrown to the-ground and was injured. The negligence charged is. the use of a defective, inadequate and improper car, machinery and appliances.

The defendant asked the learned court to charge as follows: There is no evidence to warrant a jury in finding that the accident happened from any defective condition of the car,” and excepted to a refusal The plaintiff had pleaded inter alia that the car was defective. She did not offer any proof to show or tending to show that the car was in a defective condition which in any way could have caused the accident or contributed to it, pr that such an accident could1 have come from a defective car but not. to it in good order. She relies upon the disturbance itself. However, her witness Bedhill, speaking of the time immediately prior to the disturbance, testifies : “ The car was approaching apparently like any car would come, everything being all right; then all of a sudden there was a great flash of light in the front of the car and a crackling noise, as though there were something the matter in the front, and then finally the light seemed to be tearing all around the car as though it was made on the back of the car, and on top and back again.” The defendant, put to explanation, makes it and thereby adequately accounts for the accident in that a cross wire from a pole for the trolley wire became broken,'hung over the feed wire and hence was charged with electricity so that when it came in contact with the iron hood of the car running into it, the disturbance testified to was the inevitable result. There is no dispute about this ; indeed, the plaintiff’s witness Eedhill testifies to the fact of the broken trolley wire belonging to one of the'poles trailing along the railroad. There is no proof, contention or suggestion that this electrical disturbance was due to any defect in the car itself." There is proof that the car was in good order before, during and after the. accident. From the refusal of the instruction the jury might properly infer that the court thought that there was evidence that the car was defective, and hence it is possible that the element of a defective car may have been considered by the jury and have induced or influenced it to find for the plaintiff. If the jury had received the instruction, it cannot be said that nevertheless its verdict would have been the same, for it is possible that upon the proof it might have, concluded that the defendant was not liable for the consequences of the broken wire.' I think the error requires reversal of the judgment. (Jones v. Kroder & Reubel Co., 95 App. Div. 140 ; Storey v. Brennan, 15 N. Y. 524 ; Thalheimer v. Lamont, 9 N. Y. St. Repr. 439 ; Booth v. Boston & Albany R. R. Co., 67 N. Y. 593 ; Hine v. New York Elevated R. R. Co., 36 Hun, 293 ; Palmer v. Larchmont Horse R. Co., 95 App. Div. 106.)

And I am not clear but that the learned County Court confused the lay minds of the jury on the question of the burden of proof. I can understand that the court had in mind the principle that often in view of the character of an accident the defendant is put to an explanation of it, but in attempting to express this rule the courts sometimes fall into the general expression that the burden of proof is on the defendant. This is not accurate and it is apt to mislead. Upon the issue of negligence the bnrdep is-upon him who charges it. The fact that the very nature of the accident may call upon him who is charged with negligence therefor to explain the occurrence, does not lift the burden upon the issue of negligence from him who asserts it, and put it upon him who is charged therewith. In the terse words of Cullen, J., in Jones v. Union Railway Co. (18 App. Div. 267), A presumption does not shift the burden of proof.” (See,, too, Kay v. Metropolitan Street R. Co., 163 N. Y. 447 and authorities cited.)

The judgment and order are reversed and a new trial is ordered, costs to abide the event. _ - , '

Gaynor, Rich and Miller, JJ., concurred ; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed and. new .trial ordered,, costs to abide the event..  