
    D’ARCY v. WESTCHESTER ELECTRIC RY. CO.
    (Supreme Court, Appellate Division, First Department.
    April 24, 1903.)
    1. Carriers—Injury to Passenger—Res Ipsa Loquitur.
    The fact that a passenger on a trolley car, injured by reason of the escape of electricity in the car, undertook to show that the accident was due to defective insulation, and failed, did not necessarily take away from the company the legal obligation of giving an explanation of the occurrence, and showing that it was not due to its negligence.
    McLaughlin, J., dissenting.
    
      Appeal from Trial Term, New York County.
    Action by George C. D’Arcy against the Westchester Electric Railway Company. Judgment dismissing the complaint, and plaintiff appeals.
    Reversed.
    •Argued before VAN BRUNT, P. J., and McRAUGHRIN, PATTERSON, O’BRIEN, and LAÜGHLIN, JJ.
    W. C. Beecher, for appellant.
    A. Ofner, for respondent.
   PATTERSON, J.

The plaintiff appeals from a judgment dismissing the complaint in an action brought to recover damages for injuries alleged to have been sustained by him through the negligence of the defendant. He was- a passenger on a car of the defendant operated by an overhead trolley wire. It was a closed car, and the plaintiff was standing on the rear platform. The car was moving south from Mt. Vernon to West Farms. Plaintiff was standing on the left side of the platform—he facing the north—with his left hand behind him, grasping a brass rod which was placed across a window for its protection. While thus standing, according to his testimony, he received a shock of electricity which was »so violent as to cause him to lose his grasp of the rod, and he was thrown toward the back of the car, and fell into what is called a “ditch” on the side of the defendant’s road, and sustained injuries. He testified that at the time he received the shock there was a flash of electricity, something like lightning; it was of a bluish color— very bright. When he was taken to his home, after the accident, marks were found upon his person, which a witness, who made a special study of the effects of electricity upon the human form, testified were such as are caused by the passage of an electric current. Another witness, who was standing upon the platform, testified to the flash of electricity; that it was all around the car; that there was no flash on the back platform; that it came from the front of the car, and that it closed his eyes and blinded him for a moment ; and that hé felt the shock; and he describes it as if needles and pins were going through him.

It appeared in evidence that, just prior to the occurrence described by the plaintiff and his witness, a fuse on the car had blown out, but it seems to be admitted by all that that circumstance was not, and could not have been, the cause of the accident; and, further than that, the blowing out of a fuse in the operation of an electric railway car is a common occurrence, and negligence is not predicable of it. But the plaintiff undertook to establish affirmatively that the occurrence was to be ascribed to another cause, which involved negligence, namely, imperfect insulation of the wires in the car which acted as conductors of the electricity by which that car was operated. The only evidence offered on the part of the plaintiff to sustain that contention was of an expert, who testified that electricity could not escape into the body of the car if the insulation were in proper condition; thus giving rise to the inference that, because electricity did enter the body' of the car, the insulation was imperfect. But this same witness testified that if, on a car in which a fuse had blown out, the fuse is replaced, and the car proceeds and continues to do its work, “it is an indication that the wiring was all right.” The defendant proved that on the same day of the accident, and before the fuse blew out, the car was operated in perfect safety, and on the same day, immediately after the fuse blew out and was replaced, the car continued in service, and was operated with safety. It was thus shown that the accident was not attributable to the blowing out of the fuse, and that the conditions were such as to render it plain that the escape of electricity into the car was not due to imperfect insulation. The learned trial judge dismissed the complaint as being “not sufficient to submit to the jury on the question of the defendant’s negligence.”

Although the plaintiff failed' to establish affirmatively the cause of this accident, it is claimed the case should have been submitted to the jury as one controlled by the maxim res ipso loquitur. “When a thing causing injury is shown to be under the control of the defendant, and the accident is such as, in the ordinary course of business, does, not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 297, 16 N. E. 60, 4 Am. St. Rep. 450; Seybolt v. N. Y., L. E. &.W. R. R., 95 N. Y. 562, 47 Am. Rep. 75; Edgerton v. N. Y. & H. R. R., 39 N. Y. 227; Poulsen v. Nassau R. R., 18 App. Div. 221, 45 N. Y. Supp. 941; Gilmore v. Brooklyn Heights R. Co., 6 App. Div. 119, 39 N. Y. Supp. 417. Here the plaintiff was a passenger on the car of a common carrier, and was in contractual relations with that carrier. The defendant owed a duty which transcends that which it would owe to a person not standing in that relation to it. The cases of Piehl v. Albany Ry., 30 App. Div. 166, 51 N. Y. Supp. 755, affirmed in 162 N. Y. 617, 57 N. E. 1122, Cosulich v. S. O. Co., 122 N. Y. 124, 25 N. E. 259, 19 Am. St. Rep. 475, and Welsh v. Cornell, 168 N. Y. 508, 61 N. E. 891, are not cases of common carriers. In the Cosulich Case the distinction is pointed out between cases in which contractual relations exist, and those in which the defendant owes no other duty than to use such ordinary care and caution as the nature of a particular business demands to avoid injury to others; and it is stated that there is a difference in the rule requiring affirmative proof of negligence, beyond the mere fact of the occurrence itself, as that rule is to be applied to common carriers or to other defendants. In Griffen v. Manice, 166 N. Y. 194, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630, referring to the maxim, the court says:

“It is based in part on the consideration that, where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to furnish evidence of the actual cause which produced the accident, and which the plaintiff is unable to present; and the question in every ease is the same when the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.” “When the facts and circumstances from which the jury is asked to infer negligence are those immediately attending upon the occurrence, we speak of it as a case of res ipso loquitur. When not immediately connected with the occurrence, then it is a case of circumstantial evidence.”

In the present case, assuming the account of the accident given by the plaintiff’s witnesses to be true, he received a shock from a discharge or escape of electricity in the car, and sustained his injuries in consequence thereof. The circumstances from which the inference of negligence is to be drawn are those immediately attending the occurrence, and constitute the cause itself. Although the plaintiff undertook to prove a specific cause, and failed therein, that did not necessarily in this case take away from the defendant the legal obligation to give an explanation of this extraordinary occurrence. It is true that the plaintiff, by his own witness—a skilled electrician, acquainted with the method by which electricity is conveyed into overhead trolley cars, and with the machinery and the regulator—testified positively that there is no way in which the electric fluid could escape into the body of the car, except through a defect in the insulation; but the defendant’s skilled electrician testified that he had known metal work to become alive from trouble with the motor, or trouble with the connections to the motor near the truck, and that the metal work of a car cannot become charged unless there is something out of order about the electrical apparatus. “That is not a normal function. It is something out of the way.” While the accident from which the plaintiff suffered was not caused by the blowing out of the fuse or imperfect insulation, it may have occurred from some other among the causes mentioned by this witness; and, on the whole evidence, it was for the defendant to make the required explanation.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur, except Mc-LAUGHLIN, J., who dissents.  