
    CHARLES CORDS, Appellant v. THE THIRD AVENUE RAILROAD COMPANY, Respondent.
    
      Negligence, evidence insufficient to establish.
    
    In this case it being consistent with the testimony that the party injured (a child) by being run over by one of defendant’s cars, came into contact with the horses at the side so suddenly that the consequences were unavoidable, it was Held, that the complaint was properly dismissed.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided January 7, 1889.
    Appeal by plaintiff from judgment dismissing the complaint.
    The facts sufficiently appear in the opinion.
    
      Miller & Savage, attorneys, and George W. Miller of counsel for appellant, on the question considered in the opinion, argued:—
    I. The court below overlooked a rule applicable to such cases which is thoroughly well settled, and, it is submitted, is controlling in this case. The rule is thus stated in the very recent case of Breen v. N. Y. C. R. R. Co., in the Court of Appeals, 109 N. Y. 297. “In an action for negligence where the thing causing the injury is shown to be under the control of defendant, and the accident is such as does not happen in the ordinary course of business, if reasonable care is used, in the absence of explanation by defendant, it affords sufficient evidence that the accident arose from want of care on its part.” This case merely followed and confirmed the same doctrine as held in Russell v. Steamboat Co., 50 N. Y. 126-7-8; Caldwell v. Steamboat Co., 47 N. Y. 282; Seybolt v. N. Y. & E. R. R., 95 N. Y. 
      562-568. While the affirmative is upon plaintiff to prove negligence, it is not necessarily to be sustained by “ positive and direct evidence; ” “ proof of circumstances from which the inference may fairly be drawn is sufficient” “ where the inferences are not certain and incontrovertible, for the jury to decide.” Hart v. H. R R. B. Co., 80 N. Y. 622. Although there may have been no eye-witness of the whole occurrence, negligence of defendant and want of contributory negligence may be found from circumstances proved. Smedis v. R. R. Co., 23 Hun, 279; 88 N. Y. 13; Jones v. R. R Co., 28 Hun, 364-366. “ Plaintiff is entitled to have the issue of negligence submitted to a jury when it depends upon conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men.” Payne v. Troy & B. R. R. Co., 83 N. Y. 572; R. R. Co. v. Stout, 17 Wallace, U. 8. 657, and numerous other cases. It is submitted that the case cited by the trial judge,Searles v. Manhatten R. Co., 101 N. Y. 661, is in no sense like the one at bar. That- was an action for an injury alleged to have been caused by negligence of defendant by reason of a cinder falling from one of defendant’s engines and striking plaintiff in the eye while riding on a street car beneath. There was no nonsuit. The court of appeals merely held, upon a consideration of all the evidence, pro and con, that “ there was an utter failure of evidence to show that the accident occurred from any fault, negligence or unskillfulness on the part of defendant.”.....“ The undisputed evidence shows that all the appliances used to prevent the escape of sparks and cinders, were skillfully made and were the best known,” etc.
    There are, however, numerous cases reported which are on all fours with the case at bar, and which clearly show the error in granting the nonsuit. Bahrenburg v. Brooklyn City & H. P. R. R., 56 N. Y. 652; Thurber v. H. B. M. & T. R. R., 60 N. Y. 326 ; Fallon v. Central Park, N. & E. R. R., 64 N. Y. 13; Murphy v. Orr, 96 N. Y. 14; Birkett v. Ice Company, 41 Hun, 404; Kuntz v. City of Troy, 104 N. Y. 344.
    II. In view of the last point it would seem clear that the injury to the child in this case was attributable to one of two causes: either negligence of the driver of the car, or, negligence of the child and his mother. The latter cannot be presumed. The evidence was ample, within the cases cited, to show no contributory negligence, or at least to make it a question for the jury.- “The plaintiff is entitled to the most favorable inferences deducible from the evidence.” Kuntz v. City of Troy, 104 N. Y 352. The injury is not to be presumed to have occurred from normal causes, or without negligence somewhere. • The only inference left is that it was caused by the negligence of the driver. At least, the jury should have been allowed to decide that question. If the .driver, on a clear day, on a clear street, where children and others were, and had a right to be, did not see the child, he was negligent. If he did see it, and did not usé proper care to avoid running over it, he was negligent. Whether negligent, the circumstances being proved, was a question of' fact for the jury.
    
      Hocidly, Lauterbach & Johnson, attorneys, and Wm. N. Cohen, of counsel for respondent, on the question considered in the opinion, argued :—
    
      “ A judge will not be justified in leaving the case to the jury when the plaintiff’s evidence is equally consistent with the absence a,s with the existence of negligence in the defendant. In such case the party affirming negligence has altogether failed to establish it.” Benlec v. N. Y. & Harlem R. R. Co., 59 N. Y 356 ; Hayes v. The Forty-second street R. R. Co., 97 N. Y. 259 ; Searles v. Manhattan Railway Co., 101 N. Y. 661; Taylor v. City of Yonkers, 105 N. Y 202.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the loss of the services of the plaintiff’s child, caused by the negligence of defendant’s servants in driving a car of defendant’s so that the child was knocked down by the horses and seriously hurt.

In my judgment, there were no facts in the case which would have justified the judge in submitting to the jury the issue of negligence. The negligence charged against the driver of the car, was in not stopping the horses before they ran over the child. There was however no fact which tended to show that at any point of time, the child was at a place where the driver could have seen him and then have managed the horses so that the child would not have been knocked down by them. It was consistent with the testimony that the child came into contact with the horses at the side and so suddenly, that the consequences were unavoidable.

There was-no presumption of negligence. Until the contrary is shown it is to be assumed that the driver did his duty in looking ahead over his pathway and would have avoided whatever it was his duty to avoid. To show that he neglected this duty, it was necessary to show that the child was in the way and that it was the duty of the driver of the car to see him. There was an absence of testimony in this respect.

The judgment should be affirmed with costs.

Ingraham, J., concurred.  