
    Lena Leyh, Respondent, v. Newburgh Electric Railway Company, Appellant.
    
      Negligence — curtain rod on an electric railway car—liability of the railway company for an injury caused by its breaking in a high wind—res ipso loquitur.
    An electric railway company is not bound to use the very highest degree of care in respect to the rods with which the curtains on its cars are fitted.
    A railway company is not liable for injuries resulting from the breaking of a curtain rod while a high wind was blowing, in consequence of which the curtain was blown into the car and the end of the rod struck a passenger, where it appears that the curtains, which were of a pattern in general use upon a great many railroads, had been placed in the car by a reputable firm of car builders, and that an examination of the rod previous to the accident would not have disclosed any defect therein.
    The rule of res ipso loquitur does not apply to such a case.
    "Woodward, J., dissented.
    Appeal by the defendant, the Newburgh Electric Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of December, 1898, upon the verdict of a jury for $1,500.
    
      
      Jesse Johnson, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Goodrich, P. J.:

The plaintiff, in June, 1896, was a passenger in an open car of the defendant, which operated a line of electric cars between New-burgh and Walden, a distance of twelve miles. The car in which the defendant rode was equipped with canvas curtains which worked up and down by a spring similar to those common in households. The bottom of the curtain was hemmed and in the hem was a hollow iron pipe or rod, three-eighths or a half inch in diameter. At the-ends of the rod were brass shoes or caps which were fitted into the-rod, and these shoes ran up and down in grooves in the sides of' stanchions supporting the roof. . On the day in question there was-a high wind, and, at the request of some of the passengers, the conductor pulled down the curtains on the windward side. J ust before the accident to the plaintiff the.direction of the car route changed,, bringing the wind more forcibly against the curtains. Soon after, the bottom of one of them became loose, and the curtain blew into-the car, the end of the iron rod striking the plaintiff a violent blow on the head and inflicting damage for which she brought this action. The defendant moved to dismiss the complaint on the ground that-there was no negligence on the part of the defendant, and that the coinpany had exercised proper care in the equipment of the car and. curtain. The motion was denied, and under the exception of the-. defendant the appeal comes before us. The only question argued by the appellant arises on the denial of this motion.

The doctrine is well established that a common carrier of passengers is bound to the very highest degree of care in the equipment of its road and certain of its appliances. This is conceded in the brief of the defendant’s counsel, but he contends that as the danger to be guarded against decreases, so does the degree of care decrease. He cites McGrell v. Buffalo Office Bldg. Co. (153 N. Y. 265) which was an action against the owner of a passenger elevator. The -court said (pp. 268, 269): “ While it was the defendant’s duty to-provide a safe and suitable car, appliances and other machinery for the operation of its elevator, and for the accommodation of its-passengers, and to exercise strict diligence in that respect, still, the law did not impose upon the defendant the duty of providing for their absolute safety, so that they should encounter no possible danger or meet with no casualty in the use of the appliances provided.” (Citing cases.) The court also said (p. 271): “ It may be that, as to the machinery and appliances by which an elevator is moved and controlled in its ascent and descent, an owner is bound to use the utmost care as to any defect which would be liable to occasion great danger or loss of life, and that he is in that respect subject to the same rule that applies to a railroad company in regard to its roadbed, engine and other similar machinery. But, as to the surroundings and other structures forming a part of the elevator plant, where less danger is to be apprehended, we think the rule is less strict, and the doctrine of the cases cited applies. In the latter case the rule is satisfied with that degree of care which a reasonably prudent man would exercise. This distinction is considered in some of the cases to which we have already referred. The requirement of the greater degree of care is dependent, not so much upon the actual apprehension of danger as upon the consequences likely to result from a defect in the machinery and appliances. In cases where less serious results are to be expected, and in cases where danger is not to be apprehended, if due and proper care is observed by the passenger, the owner is responsible only for the want of ordinary and reasonable care.”

In commenting upon this doctrine the court cited with approval Cleveland v. New Jersey Steamboat Co. (68 N. Y. 306) where it was said (p. 310): “A carrier of passengers is not bound to foresee and provide against casualties never before known and not reasonably to be expected. (Citing cases.) Hence his duty is not .to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it.”

It has been repeatedly held by the Court of Appeals that the rule which holds common carriers of passengers to the use of the utmost possible care in discovering defects in their tracks and running machinery, applies only to such appliances as would be likely to occasion danger and loss of life to the traveling public if defects existed therein. (Palmer v. Pennsylvania Co., 111 N. Y. 488; Kelly v. N. Y. & Sea Beach R. Co., 109 id. 44; Palmer v. D. & H. C. Co., 120 id. 170.)

In the case last cited the court, Judge Bead lev writing, recognized the doctrine that a railroad company is not an insurer of the safety of its passengers, and is not required to use the same degree of care and watchfulness as to all portions of its machinery and appliances.. The court held that tlje plaintiff had the burden of proving a state of facts from which it might be inferred that the injury was occasioned by the negligence of the defendant, and for that purpose it was made to appear that the severance of the train from the engine was caused by the breaking of the spindle bar on the forward end of the car next the engine. The court said: The same degree of care and watchfulness are not alike requisite to all of the various portions of the machinery and appliances. The apparent necessity for frequency of examination is somewhat dependent upon the liability to impairment and the consequences which may be apprehended as the result of defective condition.” It is true that in this case it was held that the question was one of fact to be submitted to the jury, but this does not affect the principle announced by the court.

In the Kelly case the plaintiff was injured in a fall occasioned by catching her dress on a snap hook used to hold down a car curtain operating in a manner similar to the one in use in the case at bar. The hook had been broken, but when or how did not appear. The court said: The hooks broke in no other way than by use, and, for aught that appears, this hook may have been broken by some person after the car started upon that trip. The defendant gave evidence showing that all the Coney Island cars were furnished with the same kind of curtains and hooks, and that there was no better way known of fastening the curtains; that its road had been operated for several years and carried more than a million of passengers every year, and that such an accident had never before occurred.”

It is true that in the case at bar no examination of the curtain rod was shown, but it is evident that no examination would have disclosed an imperfection in the rod, as the break was clean and showed no flaw.

With these doctrines in mind, let us refer to the evidence. It appears that the car had been built in 1895, and had been operated during the summers of 1895 and 1896, but not in the winter. It was built and the curtains put in by Jackson & Sharp, of Wilming"ton, which was proved to be a firm of high standing and one of the leading car builders of the country. Similar curtains were in gen•eral use on a great many other roads. While these facts are not -conclusive evidence that the carrier used requisite care, they show "that care was used and precaution exercised. No previous accident •of a similar character was proved by the plaintiff, and there was testimony tending to show that none such had occurred on the defend.ant’s road. We do not consider this a case where the doctrine of ■res i/psa loquitur applies, and it was, therefore, incumbent on the plaintiff to establish some negligence on the part of the defendant. 'There was a high wind at the time, the force of which apparently broke the shoe at the point where it was inserted in the rod, leaving .-a piece of the shoe on the rod, and the fracture was bright, showing •no flaw. No external examination would have shown a defect in •the material. Nor was there any other evidence as to the cause of "the accident. It was not shown that the defendant or the builders •of the car failed to equip it in a proper manner, or that the rod was defective, or that any defect would have been disclosed by •examination, or that the fixture was broken by any cause except the violent wind. We cannot hold that a common carrier of passengers is bound to use the very highest degree of care in respect to the ■curtain rods of its cars. The defendant was bound to use reasonable care, adequate to the use of the appliance and to the probable .results of its use. It was not bound to foresee and prevent such an unusual and not to be expected accident as that developed by the •evidence.

On the evidence and following the authorities cited, we cannot •do otherwise than hold that it was error to refuse to dismiss the •complaint.

The judgment must be reversed.

All concurred, except Bartlett, J., who concurred in the result, ¡and Woodward, J., who read for affirmance.

Woodward, J.

(dissenting):

I do not concur in the result reached by my learned associate, and •mainly because I do not agree with his application of the legal ¡principles to the particular facts in the case.

The accident was a novel one, hut I am not aware that that is Any reason against the maintenance of the action, though we find frequent statements in the cases cited to the effect that a carrier of passengers is not bound to provide against casualties never before lcnown.

In Jones v. Brooklyn Heights R. R. Co. (23 App. Div. 141) this ■court affirmed a judgment for the plaintiff where the accident was both novel and odd. A small electric light bulb, weighing but a few ounces, fell upon and injured a passenger, and the question of the defendant’s responsibility was not raised on the appeal.

Briefly stated, the plaintiff in the case at bar, a passenger in defendant’s electric car, without negligence on her part, was injured by the breaking of a curtain rod which was unable to withstand the pressure of a strong wind. The edges of the break were bright, showing, as my learned associate says, no flaw ; and lie seems to conclude that, as there was no flaw, the rod was not defective. But weakness is a defect, and that the rod was unable to withstand the pressure of a strong wind is abundant evidence of weakness, and, to my mind, sufficient evidence of negligence to require a submission ■of the question to the jury. Bes ipso loquitur.

Kelly v. N. Y. & S. B. R. Co. (109 N. Y. 44) is the only case which presents any difficulty, but it was there held that the defendant had done all it could, or was bound to do, and the evidence showed that frequent inspections were made. There was no evidence whatever as to the cause of the break. In the present case there is no evidence of any inspection, and abundant evidence as to the cause of the break.

The prevailing opinion quotes Judge Bradley, in the Palmer Case (120 N. Y. 170), to show that the degree of care as to different portions of the machinery and appurtenances varies, and also to show that the necessity of examination is somewhat dependent upon liability to impairment. The opinion is an interesting one, and to ■show that the question is one of fact for the jury, I continue the the quotation, beginning where the prevailing opinion terminates it (p. 176): “ But whether the system (of inspection) and the manner of its execution, are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court. It must, in view of the circumstances appearing by the evidence, be one of fact for the jury to determine upon proper instructions relating to the degree of care imposed upon the company; and while it is true that the question of fact so presented is somewhat speculative in the sense that it is not measured by any definite rule, it must nevertheless become a matter of judgment to be expressed by the jury and founded upon the evidence.”

It may be true that as to minor portions of a vehicle the carrier of passengers is not to be held to the highest degree of care ; but I do not think we may say, as a matter of law, that a portion of the side of a vehicle, designed to protect passengers from the weather, is such a minor detail as to relieve the carrier from the burden of proving that it was not at fault if such a portion of the side is shown to have been too weak to withstand the wind, and as a direct result of such weakness a passenger in the exercise of due care is injured.

The judgment should be affirmed.

Judgment reversed and new trial granted, costs to abide the event  