
    Peter J. Sullivan, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    March 1, 1907.
    Negligence—injury by stepping upon an electrically charged, rail — erroneous charge.
    In an action to recover damages for injuries received by the plaintiff, who stepped upon an electrically,charged rail, when the defendant has given expert testimony that the shock could not be received' except under certain conditions . which did not exist, it is error for the court to instruct the jury that if the plaintiff received the shock he is entitled to recover, whether the defendant has exonerated itself or not. Such instruction is equivalent to holding that the defendant was an insurer, and that the sole question was whether the accident resulted from the shock.
    Appeal ‘by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the County'Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county- of Queens on the 1st day of June, 1906, upon the verdict of a jury .for $200, and also from an order entered in said clerk’s office on the 29th day of Hay, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      Herbert N. Warbasse, for the respondent.
   Jenks, J.:

The learned court submitted the. case to the jury, and instructed it that the issue was whether or not the plaintiff received an electrical shock by stepping upon the rail. “ If he did receive an electrical shock by stepping upon the rails of tins track, and was. injured in that manner, he is entitled to recover.” At the close of. the charge the learned counsel for the respondent said : “ I ask your Honor to instruct the jury that if they believe the plaintiff received an electrical shock at the'time alleged and in the manner described by the plaintiff, unless they are'satisfied that the defendant has exonerated itself, they may bring in a verdict for the plaintiff upon that' evidence.” The court replied“Whether the’ defendant has exonerated itself or not, if they believe he received an electrical shock he is entitled to recover.” Exception ivas taken. The learned counsel for the appellant then excepted to that part of the charge wherein the court said that <£ if the plaintiff received an electrical shock when he stepped on the tracks he is entitled to recover.” The court then said: “ I will modify that to the extent that if he was injured by an electrical shock which he received by stepping upon the tracks, he is entitled to recover.” The defendant then excepted to the charge as given and to the modification.

I think that the exceptions were well taken. The action was for negligence, that is, for a breach of "the legal duty to use the care due under the circumstances. The defendant offered evidence described by the learned court in its charge £? to the conditions of the track there, and the opinions of their experts as to the impossibility of an electrical shock being transmitted except under certain conditions which must have been present,, and which they claim were not present.” And yet the court charged, “ whether" the defendant has exonerated itself or not,” if the jury believed that the plaintiff received the shock he was entitled to recover; or, in other words, that the defendant was an’insurer, and that the sole question was whether the, accident had resulted from the shock. It had not ruled as matter of law that there was no evidence that exonerated or tended to exonerate the defendant, and then but left to the jury as questions of fact the happening of the accident from the cause alleged, and of the damages, but had submitted the entire case, charging as the law that even" if the testimony did exonerate the defendant, it was liable.

It is quite true that the doctrine of res ipsa loquitur was applicable (Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51), but as we said in that case, per Willard Bartlett, J.: “ 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.” (See, too, Ludwig v. Metropolitan St. R. Co., 71 App. Div. 210; 174 N. Y. 546.)

The learned- counsel for the appellant insists that in any event the error .was cured or waived in that. thereafter the defendant requested the court 'to charge, and the court in effect charged, “ that the plaintiff has got to prove by satisfactory evidence that any injury he received was due to an electrical shock, * * * and that the jury-have no right to theorize or speculate, and that the evidence must- be positive evidence, and not probable or theorizing evidence.” These instructions related to the. cause of the injury and the requisite proof thereof, and in no way affected the question which I have discussed. I advise that a new trial be ordered, costs to abide the event.

Hooker, G-aynor, Rich and Miller, JJ., concurred.

■ Judgment and or.der of the County Court of- Queens county reversed and new trial ordered, costs to abide the event.  