
    John J. Paine, an Infant, by Olin F. Paine, His Guardian ad Litem, Respondent, v. Geneva, Waterloo, Seneca Falls and Cayuga Lake Traction Company, Appellant.
    Fourth Department,
    November 14, 1906.
    Carrier—explosion of controller on street car — passenger injured by jumping — res ipsa loquitur — verdict contrary to charge reversed although justified by evidence — use of dangerous appliances negligence per se.
    Where a boy is frightened by an explosion and flames issuing from the controller box of a street car, and is injured by jumping from the car, the question of his contributory negligence is for the jury, and the fact that he would have escaped injury if he had remained in his seat does not - establish negligence on his part as a matter of law.
    An accident of this character is so unusual that it calls upon the carrier for an explanation in order to escape the imputation of negligence.
    The charge of the trial judge becomes the law of the case, and under a charge “that the evidence fails to show that there was at the time of the accident any known appliance or device or degree of care on the part of the defendant which would have prevented an accident like the one in question ” a verdict for the plaintiff "must be reversed where no other issue of the defendant’s negligence was submitted to the jury. This is true although the charge was erroneous and the evidence j ustified a finding that the defect might have been discovered by exercising the greatest care, and that the failure so to act was the proximate cause of the accident.
    
      It seems, that where the carrier uses an appliance so dangerous that its operation might result in injury to passengers, with knowledge that no inspection could determine whether or not the appliance was safe, it cannot escape liability on the ground that the defect could not have been discovered. ■
    Appeal by the defendant, the Geneva, Waterloo, Seneca Falls and Cayuga Lake Traction Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 21st day of June, 1906, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 21st day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced in Hovember, 1905, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.
    
      
      Charles A. Hawley, for the appellant.
    
      A. Lee Olmsted, for the respondent.
   McLennan, P. J.:

The evidence given on behalf of the plaintiff tended to prove that on the 25th of August, 1905, the plaintiff,-then twelve years of age, boarded one of the defendant’s street cars in the village of Waterloo, N. Y. He was accustomed to ride on street cars alone, was seated in a seat in the ordinary way and looking backward toward the rear of the car, when he heard an explosion, saw .two of the passengers jump to their feet, looked toward the front of the car and saw flames issuing from the controller box and extending nearly to the roof of the car, saw the motormah jump to one side, and saw a comriiotion among the passengers., He, believing the car was on fire, became frightened, left his seat and jumped from the car, breaking his leg and sustaining the injuries of which he. complains.

The question of plaintiff’s freedom from contributory negligence was, upon the evidence, one of fact for the jury, and its finding in that respect should be regarded as conclusive. The fact that the plaintiff jumped from the car while the other passengers remained seated, and that if he had remained lie would not have been injured, doQS not establish negligence on his part as matter of law. (Poulsen v. Nassau Electric R. R. Co., 30 App. Div. 246.)

• It is urged, however, that there is no evidence which tends to establish actionable negligence on the part of the defendant. ■ The obligation rested upon the defendant to exercise the utmost care and diligence suggested by human prudence arid foresight in the construction and equipment of its cars to insure the safety of the passengers it had received for carriage. (Palmer v. D. & H. C. Co., 120 N. Y. 170.)

■ The explosion and burning of the controller in the manner described was most unusual and extraordinary and such as to call upon the defendant for an explanation in order to relieve it from the charge of negligence.- (Poulsen v. Nassau Electric R. R. Co., 18 App. Div. 221.)

The explanation sought to be made by ,the defendant is in effect that it is impossible to account for the explosion ; that the controller was of the best and most approved pattern; that it liad been inspected in the most approved manner and in accordance with the most approved methods; that such inspection disclosed no defect, and there is no means known by which it can be determined in advance whether or not such a controller will explode and burn up in the manner in which it did.

We think the evidence does not warrant that conclusion. Several causes were mentioned by the experts, any one of which would have accounted for the happening of the accident, and we think the evidence quite plainly demonstrates that an inspection made with “ the utmost care and diligence suggested by human prudence and foresight ” would have disclosed the defect which caused the explosion. If not, then we think the defendant might well be held guilty of actionable negligence in placing upon its cars a machine or appliance so dangerous that its operation might result in the death or injury of its passengers, with the knowledge that it was impossible to ascertain whether it could be used with safety or not. It cannot be the law that a carrier of passengers in ay make use of a dangerous appliance, no matter how essential to the conduct of its business in a particular manner, or how perfect such appliance may be in its construction, with the knowledge that a defect in it which would result in injury to the passenger could not be detected by any known test, and then evade liability for injury sustained by a passenger by saying : Such defects, if any, which caused the injury could not have been discovered by any known method of inspection and, therefore, no liability attaches.”

But, as we have suggested, we think the evidence was of such a character as to have justified the jury in finding that by the exercise of the greatest degree of care and prudence by the defendant it could have discovered that the controller in question was defective, and that upon its failure so to do it was chargeable with negligence which was the proximate cause of the injury sustained by the plaintiff. '

The learned trial court, however, charged the jury, upon defendant’s request, “ that the evidence fails to show that there was at the time of the accident any known appliance or device, "or degree of care on the part of the defendant which would prevent an accident like the one in question.” That became the law of this case. The jury were in effect prohibited from finding that the defendant was guilty of negligence because of its failure to discover the defect which caused the accident, and it was not 'suggested to the jury that they might find the defendant negligent because of the fact that it placed in one of its cars a machine in which a defect existed, but which could not be discovered and which would render it dangerous to passengers. We, therefore, fail to discover how, under the charge of the court, any proposition was submitted to the jury which would authorize it to find that the defendant was guilty of negligence which caused the accident. If the defect in .the machine was such as could not have been discovered by any degree of care on the part of the defendant,” then the defendant-was not chargeable with negligence for not having discovered such defect, and that was the only issue relative to defendant’s negligence which was submitted to the jury. The other question suggested, as to whether the defendant was negligent in using such a machine, the defect in which could not be discovered, was in no manner suggested to or submitted to the jury.

We conclude that error was committed by the learned trial court in charging in the language quoted, but that the law as stated in that charge became the law of this case and precluded the jury from rendering a verdict based upon such charge of negligence, and .that there being no other charge of negligence submitted to them upon which to base a finding, their verdict cannot stand.

It follows that the judgment-arid order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide event.

All concurred; Williams and Hash, JJ., in result only.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  