
    DEAN v. TARRYTOWN, W. P. & M. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 8, 1906.)
    1. Cabetees—Stbeet Railboads—Actions fob Injuries—Evidence—Instbuc-TIONS.
    Where, in an action against a street railway company, it was charged that the company was negligent In the use of a defective car and appliances, and the proof showed that the car was in good order, and that the accident was due to an electrically charged broken cross-wire from a pole for the trolley wire coming in contact with the iron hood of the car, the refusal to charge that there was no evidence warranting a finding that the accident happened from any defect of the car was erroneous, as leading the jury to infer that the court thought that there was evidence that the car was defective.
    2. Negligence—Burden of Proof.
    That the nature of an accident may call on one charged with negligence causing it to explain the occurrence does not shift the burden on the issue of negligence from him who asserts it to him who is charged therewith.
    [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 217, 218, 224, 225.]
    Hooker, J., dissenting.
    Appeal from Westchester County Court.
    Action by Anna Dean against the Tarry town, White Plains & Mamaroneck Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed and new trial ordered.
    Argued before JENKS, HOOKER, RICH, MILLER, and GAYNORJJ.
    Bayard H. Ames (Henry A. Robinson, on the brief), for appellant.
    Winfield L. Morse, for 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, “there is no evidence to warrant a jury in finding that this 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, or that such an accident could have come from a defective car, but not to it in good order. She relies upon the disturbance itself. However, her witness Redhill, 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 Redhill 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 & Roubel Co., 95 App. Div. 140, 88 N. Y. Supp. 870; Storey v. Brennan, 15 N. Y. 524, 69 Am. Dec. 629; Thalheimer v. Lamont, 9 N. Y. St. Rep. 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, 88 N. Y. Supp. 447.

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 burden 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, 46 N. Y. Supp. 321: “A presumption does not shift the burden of proof.” See, too, Kay v. Metropolitan Street Ry. Co., 163 N. Y. 447, 57 N. E. 751, and authorities cited.

The judgment and order are reversed, and a new trial is ordered, costs to abide the event. All concur, except HOOKER, J., who dissents.  