
    Margaret Hayden, as Administratrix, etc., of James Hayden, Deceased, Appellant, Respondent, v. Adrian H. Joline and Douglas Robinson, as Receivers of the New York City Railway Company, Respondents, Impleaded with The City of New York, Appellant, and The Barber Asphalt Paving Company, Defendant.
    First Department,
    April 22, 1910.
    Municipal corporation — railroad — negligence—highway — evidence.
    In order to fasten responsibility for an accident upon a municipality or upon a street railway because they permitted a hole to remain in the pavement, it is necessary to identify and describe the particular hole with reasonable certainty.
    In an action to recover for the death of plaintiff’s intestate it appeared that he fell from the rear end of au express wagon to the street and was killed. Ho one saw him when he fell or immediately before and the driver, testified that at the place of accident he turned his wagon sharply; that it skidded and he felt a jolt as though it went into a hole. The driver could not identify the hole, and his testimony was vague and uncertain. Although the plaintiff gave evidence that there were a number of holes, there was evidence by the city that there were none. Held, that there was a failure to establish the negligence of the city or the railway.
    ■Appeal by the plaintiff, Margaret Hayden, as • administratrix, etc., from so much of a judgment of the Supreme Court in part in favor of the plaintiff, and- in part in favor of the defendants Adrián H. Joline and another,' as receivers, entered in' the office of' the clerk 6f the county of New York on the 2d day of June, 1909,-as directs that the verdict rendered' by a jury in favor of the plaintiff and ■ against the said defendants be set aside and the complaint against them bé dismissed, and also from an order entered in said, clerk’s office on the 20th day of June, 1909^ setting aside the verdict andi dismissing the complaint. .'
    " Also an appeal by the defendant, The City of -New York, from the said judgment in favor of the plaintiff against the said defendant, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the. 7tli day of June, 1909, denying the-said defendant’s motion for a new trial made upon the minutes.
    
      I. Henry Harris, for the plaintiff.
    
      Theodore Gonnoly, for the appellant .the.City of New York. .
    
      Bayard H Ames, for the respondents.
   Scott, J.:

In this action for damages for the death of plaintiff’s, intestate a verdict was rendered against the city of New York and the receivers of the New York City Railway Company. The court set .aside the verdict as.against the receivers, and dismissed the complaint as to them. Judgment was entered upon the ve.rdict against the city; the latter appeals from this judgment and the plaintiff appeals from the order and judgment setting aside the verdict and dismissing the complaint against the receivers of the railway coti> pany. It must be said that the verdict rested largely upon conjecture. The deceased, a young man about nineteen years of age, was a helper on an express wagon. He undoubtedly fell from the rear of the wagon to the street receiving the injuries which resulted in his death. No one saw him fall and no one saw him immediately before he fell. The driver of tlie wagon, who sat upon a seat in front,, had seen the deceased about live or six blocks’ away from the point of the accident. Deceased was thén sitting' towards the rear of the wagon on a loose covered box which was carried in the wagon, and in which small articles were sometimes put. The wagon.was' then coming up West Broadway, below West Third

street. It drove up University Place to a point above Eighth street when the driver turned his wagon sharply, from the westerly or south-bound track, in which it had been running, to the easterly or north-bound track. The evidence indicated that in executing this operation the wagon “ skidded,” and one of the wheels struck one of the rails. The driver testifies that at or about this moment he felt the wagon jolt or jar as if one of the wheels had run into a hole. The negligence complained of is permitting this hole to remain in the roadway. The street was paved with asphalt, laid upon a stone pavement. There is evidence that there were a number of holes or depressions in the pavement between Eighth and Hi nth streets, and there are extreme discrepancies between the estimates of the different witnesses as to the depth of these holes. Ho one can positively identify the particular hole which caused the jolt of the wagon, and it is evident that some of the worst holes testified to could not have been the one which the driver attempts to identify as that into which his wheel sank. The hole into which he thinks that the wagon wheel went the driver locates .between the rails of the easterly or north-bound track, and estimates as being about two feet wide and one foot long. At one time he fixes its depth at five or six inches, and later on says that he saw no hole deeper than four inches. The evidence on the part of the defendant was that the street had been thoroughly repaired less than a month before the accident, and that there were no holes in the pavement at the time of or immediately before the accident. It is quite evident that in order to fasten responsibility upon the defendants, or either of them, because they permitted a hole to remain in the pavement it is necessary to identify and describe with a reasonable degree of certainty the particular hole which caused the accident. Until so identified arid described it is impossible to say that it was of a character to produce the accident or to sustain a charge of negligence. (Carson v. Village of Dresden, 129 App. Div. 128.) Especially is this true where, as in the present case, the evidence indicates another possible cause of the accident in the “skidding” of the wheels. To recover the plaintiff must establish a cause of action by a preponderance of evidence, and she is not relieved of this burden and entitled to "cast the burden of proving a negative upon defendants merely because accurate evidence of the manner and cause of the accident is not available. We cannot say upon the present record that the plaintiff maintained the .burden which the law casts upon her. Upon the evidence the complaint was rightly dismissed as against the receivers of the railroad company.

The judgment, in so far’as appealed from by plaintiff, is affirmed, with costs. Upon the appeal of the City of New York the judgment and order appealed from are reversed and a new trial granted, with cost's to the appellant to abide the event. ■

Ingbaham, P. J., Laughlin, Clabke and Milleb, JJ., concurred.

On plaintiff’s appeal judgment and order affirmed, with costs. On appeal of City of New York judgment and order reversed, new trial ordered, costs to appellant to abide event.- Settle order on notice. •  