
    Christina T. Grant, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence —proof that when a street car was coming to a stop a horse’s head came through the rea/r window of the car, breahing the glass, is insufficient to sustain an action for negligence — the doctrine of res ipsa loquitur is inapplicable.
    
    The complaint in an action brought to recover damages for injuries sustained by the plaintiff while a passenger upon one of the defendant’s street cars is properly dismissed, where the only evidence concerning the occurrence is that while the car was coming to a stop at a street intersection a horse attached to a wagon thrust his head through the rear window of the car, breaking the glass and frightening the plaintiff, who was sitting in front of such window.
    The maxim of res ipsa loquitur does not apply to such a case; that maxim applies only where the circumstances surrounding the accident justify, in the absence of explanation, the inference that the accident would not have occurred but for the negligence of the defendant or its agents.
    Hatch, J., dissented.
    
      Appeal by the plaintiff, Christina T. Grant, from a judgment of Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of April, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29th day of March, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Maurice Rapp, for the appellant.
    
      Charles F. Brown, for the respondent.
   Ingraham, J.:

The complaint alleges that the plaintiff, being a passenger upon one of the cars operated by the defendant, was injured owing to the carelessness and negligence of the defendant, its agents or servants, in running into and colliding with a horse and wagon, thereby causing the plaintiff to sustain serious and painful injuries, for which she seeks to recover. The plaintiff was examined as a witness and testified that she got upon the car at Ninety-first street and Madison avenue; that she took a seat in the rear of the car, her mother and sister sitting immediately opposite her; that as the car was proceeding downtown the plaintiff heard a commotion and a horse’s head came through the window behind her. Upon cross-examination she testified that the only thing she knew was that she heard a commotion and the horse’s head came into the window behind her. The plaintiff’s mother testified that as they got to Twenty-fourth street there was a sudden collision and a horse’s head came into the rear window of the car; that- this horse was attached to a wagon and came right through the window. Upon cross-examination she testified that the car came to a stop on the south crosswalk of Twenty-fourth street; that it came in collision before it came to a stop ; that she did not see the horse prior to the collision ; that the first thing she saw was the head of the horse; the first thing she got was the jerk of the car, and then she looked to see what was the cause of it and saw the horse’s head in the window; it had broken through the glass. The plaintiff’s sister testified that she was sitting on the east side of the car and a jerk of the car made her look through the car, “ and there I saw at the rear end of the car a horse’s head in the window,” and this was the only testimony as to the accident. The court dismissed the complaint and the plaintiff appeals.

Although the witnesses speak of a collision of the car in which the plaintiff was riding, that collision is immediately connected with the appearance of the horse’s head through the window of the car. It is quite evident that the only collision was caused by the horse running into the rear of the car and sticking his head through the car widow. There is not a particle of evidence to justify a finding that this accident was occasioned by any obstruction upon the track, and the only conclusion from the evidence that the jury was authorized to draw was that a horse ran into the rear of the car, not that the car ran into the horse or wagon, and thus the horse collided with the car, not the car with the horse. As the defendant had no control of the horse, it is not apparent how any care on the part of the defendant or its employees could have prevented the horse from running into the car. The witnesses unite in stating that the car was coming to a stop and stopped immediately after the horse’s head came through the window. No one appears to have been injured, except that the plaintiff was frightened by the horse’s head coming through the window and the fright caused the injury.

The plaintiff claims that the maxim res ipsa loquitur justified the jury finding that the defendant was negligent. The application of this maxim has lately been much discussed in this State. In Griffen v. Manice (166 N. Y. 188) Judge Cullen, discussing it, says: “ The application of the principle depends on the circumstances and character of the occurrence, and not on the relation between .the parties, except indirectly, so far as that relation defines the measure of duty imposed on the defendant.” The learned judge then quotes with approval from Shearman and Redfield on Negligence (4th ed. § 59): “ It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but, in these cases, the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.” The learned judge, continuing, says: “I think a single illustration will show the correctness of the view of the learned authors, that it is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. If a passenger in a car is injured by striking the seat in front of him, that of itself authorizes no inference of negligence. If it be shown, however, that he was precipitated against the seat by reason of the train coming in collision with another train or in consequence of the car being derailed, the presumption of negligence arises. The ‘res’ therefore, includes the attending circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence. The maxim is also in part based 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 produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present. Neither of these rules — that a fact may be proved by circumstantial evidence as well as by direct, and that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation — is confined to any particular class of cases, but they are general rules of evidence applicable wherever issues of fact are to be determined either in civil or criminal actions.” The learned judge then quotes from Breen v. N. Y. C. & H. R. R. R. Co. (109 N. T. 297) as follows: “ There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a 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 partand continues, But the question in every case is the same whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.”

Thus, the mere fact of a collision between the car and a horse was not of itself sufficient to justify the application of the maxim. It is only such a collision as could be prevented by the control of the car by the defendant’s agents that justifies the application of the ' maxim. If it affirmatively appears, as a part of the plaintiff’s case, that the collision was caused, not by the car colliding against an obstacle upon or in the neighborhood of the track, but by some other vehicle or animal running into the car; and it does not appear that those in charge of the car could have prevented it, then the circumstances surrounding the occurrence are not such as to justify the jury in inferring negligence. Griffen v. Manice having been reversed by the Court of Appeals, upon a new trial the complaint was dismissed. Upon appeal (74 App. Div. 371) that judgment was affirmed upon the ground that although the maxim res ipsa loquitur applied, upon the whole case the evidence did not justify a finding of negligence; and this decision was affirmed by the Court of Appeals (174 N. Y. 505).

In Alexander v. R. C. & B. R. R. Co. (128 N. Y. 13) the plaintiff was injured by a collision between a car in which the plaintiff was riding and a wagon loaded with lumber, caused by the driver of the wagon when abreast of the car suddenly turning his wagon; and it was held that there was no evidence to justify a finding of negligence of the defendant’s employees. In the opinion the case of Hill v. Ninth Ave. R. R. Co. (109 N. Y. 239) was discussed. The court said of that case, “ an inference was justifiable on the plaintiff’s proof that the car driver might have avoided the collision or lessened its effect; and, therefore, it was error to dismiss the complaint. The very nature of the accident in that case raised the inference that the driver must have been reckless, and that there might have been some way to avoid it by prudent driving; while here, there was only reason to believe that the car driver could have done nothing to avoid the consequences of the teamster’s conduct.”

To justify the application of the rule res ipsa loquitur, there] must be evidence from the surrounding circumstances which, in the I absence of explanation, justifies the inference that the accident! would not have occurred but for negligence of the defendant or its! agents. Here the proof offered by the plaintiff does not show a sit-l nation from which an inference could be drawn that the defendant} or its agents could have prevented this horse from putting his head through the car window.

The court, therefore, would not have been justified in submitting tiie question of the defendant’s negligence to the jury.

It follows that the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., Patterson and Laughlin, JJ., concurred; Hatch, J., dissented.

J udgment affirmed, with costs.  