
    Annie L. Elliott, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 18, 1908.
    Railroad—injury by rear-end collision — res ipsa loquitur — charge.,
    . Where a surface car upon which the plaintiff was a passenger suffered a rear end collision on a track used by another company, the maxim of res ipsa loquitur does not apply.
    Said maxim applies only where the occurrence would not happen in the ordinary course except by negligence on the part of the defendant, and has no application • where it may have happened through the negligence of a third party.
    
      Appeal by the defendant, The Brooklyn Heights Bailroad 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 30th day of January, 1908, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 4th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Francis R. Stoddard, Jr. [D. A. Marsh and George D. Yeomans with him on the brief], for the appellant.
    
      Arnold Gross, for the respondent.
   Gaynor, J.:

The plaintiff was in a car of the defendant as a passenger. It was standing still letting off and taking on passengers, at a regular place for that purpose, when another car came up in the rear on the same track and ran into it. Two other lines of cars used the track at the place of the occurrence which were owned and operated by another company. The plaintiff proved all of this, and the defendant introduced no evidence. There was no evidence that the defendant owned and'operated the car which came up in the rear; there Was some evidence to the contrary. There was no evidence of any negligence by the defendant, but the learned trial Judge sent the case to the jury by charging that the maxim the thing speaks for itself applied, and that therefore the burden was on the defendant to explain the cause of the occurrence.. This was error. The maxim only applies to cases where ‘ the occurrence would not happen in the ordinary course except by negligence on the part of the defendant. Here the thing could have happened without negligence by the defendant, as it may have been caused by the negligence of a third party. The. evidence showed that it did not happen by negligence of those in charge of the standing car. I do not understand that the statement in the opinion in Loudoun v. Eighth Ave. R. R. Co. (162 N. Y. 380) that from the mere fact of a collision between two street cars of different companies at a crossing the maxim applies to the company carrying the plaintiff, is now to be taken as the law. I understand the rule to the contrary, i. e., that as the thing may have happened from the negligence of the other company,, there is lacking the thing that-the maxim in every case has to stand' on, viz., that, the occurrence could not happen in the ordinary course except by the defendant’s negligence. There can be no presumption in such a case that there was negligence, by. the defendant. Such a presumption, does not arise except out of the fact that there is no-other way to account for the occurrence; in which case it is for the defendant to show • " another way. The later case of Griffen v. Manice (166 N. Y. 188) sets all this right and puts it beyond discussion. (Grant v. Met. St. R. Co., 99 App. Div. 422).

The judgment should be reversed.,

Woodward, Jenks, Hooker and Eioh, JJ., concurred.

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