
    Fredericka Rommeney, as Administratrix, etc., of Frederick Rommeney, Deceased, Respondent, v. The City of New York and Others, Appellants.
    
      Trial—charge as to the burden of proof—negligence—a builder is responsible for’ the care of mateo'ial delivered on the street, although rejected by him.
    
    Jn an action to recover damages resulting from the alleged negligence of the defendants, it is error for the court to charge that the plaintiff has maintained the burden of proof resting upon her, if her theory of the case “is more probable than the theory advanced upon the part of the defendants,” and if the plaintiff's theory is “more acceptable, more probable and more consistent with your experience than the theory advanced by the defendants.”
    The error cannot be regarded as harmless even though the other portions of the charge correctly state the burden of proof resting upon the plaintiff. Woodward, J., dissented.
    A judge presiding at a jury trial, who has charged fully upon a certain subject, is not bound to reiterate the charge in other language.
    
      Semble, that the fact that builders, who have ordered certain building material, reject it when delivered and direct the party delivering it to cart it away and not unload it in the street, does not relieve the builders from their obligation, after the material has been deposited on the street in violation of their instructions, to protect the traveling public from the obstruction.
    
      Semble, that the fact that the obstruction consisted of building material, authorizes the inference that the builders had placed it there.
    Appeal by the defendants, The City of New York and others, 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 18th day of March, 1899, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 13tli day of March, 1899, denying the defendants’ motion for a new trial made upon the minutes.
    
      William J. Carr, for the appellant, the city of New York.
    
      Charles J. Patterson, for the appellants Burkard and Meyer.
    
      S. S. Whitehouse, for the respondent.
   Hatch, J.:

The proof upon the part of the plaintiff tended to establish, and the jury were authorized to find, that the defendant city of New York was so far responsible for the condition which was created in the street as to constitute negligence upon its part in permitting the condition to exist, so that under the proof liability was properly ■charged against it. So far as the defendants Burkard and Meyer are concerned, the evidence was sufficient from which the jury were authorized to find that they were responsible for the existence of the pile of sand in the street; that the same constituted a dangerous ■obstruction, and that its position therein was unauthorized by any permit under which they claimed the right to obstruct the street. The fact that these defendants were engaged in building, and that the obstruction in the street was of building material, authorized the inference that they had placed it 'there. (Lowner v. New York, N. H. & H. R. R. Co., 55 N. E. Rep. 805.) The evidence also justified the jury in finding that the deceased was guilty of no contributory negligence which prevented a recovery. Upon the main questions, therefore, the right to recover was established.

Several questions, however, arose upon the trial which, in view •of the disposition we make of the case, seem to require consideration. It was claimed by the defendants Burkard and Meyer that for the obstruction in the street which caused the injury they were not responsible. This claim was based upon evidence tending to •establish that these defendants had ordered material from a third party for the construction of a concrete sidewalk; that when the material was delivered it was examined by them and condemned and direction was given to cart the same away, and not unload it in the street. This direction was not obeyed, but, in opposition to the wishes and express direction of these defendants, the material was deposited in the street and there remained until the time of the •accident and became the producing cause of it. Upon this testimony these defendants insist that, as they were not responsible for •depositing the material in the street, no obligation was imposed upon them in respect thereto, and that they could not be made liable for any accident which occurred on account of it. We may observe upon this question that the evidence was abundant to establish that the injury was occasioned by the sand which these defendants had directed to be deposited in the street, and this being the condition of the proof and the court having properly submitted the rights of the parties in a charge .covering both features of the case, the defendants could not complain. Assuming, however, that the pile of material which caused the injury was deposited in the street under the circumstances claimed by the defendants, we do not think that they would be relieved from the obligation of properly protecting persons lawfully exercising the right of use of the street as against the same. Laying aside the question of what the rights, liabilities, and duties of these defendants were under their permit to make use of the street, as to all material which might be deposited therein during their occupation of it, the case would still remain as one-where the parties themselves were primarily responsible for the-presence of the material, under their own statement and proof. They were the moving parties in causing the material to be brought to this place; they ordered it and expected it to be brought and left there, in consequence of which they were responsible for its presence; and even though they objected to its being placed in the street, they could not absolve themselves from the obligation, after it was deposited, which they owed to the traveling public of properly protecting them from an obstruction which they (these defendants) had been instrumental in causing. Whatever may have been the rights and liabilities as between these defendants and the person from whom the material was ordered, they cannot avail to shelter them from the obligation of taking care for the protection of persons lawfully in the street, although they had objected to the deposit of the material therein. To relieve from liability under such circumstances would permit an utter disregard of the rights of the traveling public in favor of a contractor who had a permit to-incumber the street. It is doubtful, however, if this question is in this case, for the reason that the court charged, in terms as broad as the ■ claim was made and with the consent of the plaintiff,, that no-liability would attach to the defendants under such circumstances. Subsequently the defendants requested the court to charge upon the-exact facts, which they claimed their evidence established, that they would be relieved from liability, and the court refused so to charge. We do not think that the refusal to charge this request presented any legal error, for the reason that the request which had been already charged covered every legal feature upon this branch of the case, to which the defendants were entitled; and having once. charged fully in respect to the subject-matter, the court was not. bound to again reiterate it in other language. But if it were "otherwise, as we have already observed, the defendants for this reason would not be relieved from obligation. The charge as made also cures any error found in the refusal to charge that if the light was put up to warn the public of the presence of the mortar box, it would not justify an inference of an assumption of control over and responsibility for the pile of sand. But the court had already charged that if this was the material to the deposit .of which in the street the defendants had objected, they could not be held liable for injury sustained thereby. If it was in fact not such material, then the refusal so to charge was not error. •

We should find little difficulty in supporting this judgment, were it not for what we regard as a fatal error in the charge of the court upon the question of the burden of proof. Upon this subject the court charged in the following language, “ you must find that the plaintiff has maintained the burden of proving every essential fact by the greater weight of evidence; that is, that the theory submitted to you for your adoption, upon the part of the plaintiff, is more probable than the theory advanced upon the part of the defendants. So, if you reach that conclusion that the plaintiff has maintained the burden of proof placed upon her by law, she has established her case by a greater weight of evidence. All that means is, that the theory presented to you by the plaintiff must be more acceptable, more probable, and more consistent with your experience, than the theory advanced by the defendants. If it is not, she fails.” To this charge an exception was taken. We do not think that this part of the charge can be sustained. It is the well-settled rule that the burden of proof which is charged upon the person who asserts the fact requires that the jury shall be satisfied from the whole "case that the fact is proved, and if, from the whole case, the jury are not satisfied that the fact is established, the asserting party fails in bearing the burden. (Heinemann v. Heard, 62 N. Y. 448.) In the present case the jury were told that if the theory presented by the plaintiff was more acceptable, more probable and more consistent,” she would answer the requirement of the proof. It might well be that one theory of a case was more acceptable, probable and consistent than another, and yet be unsupported by a preponderance of evidence, or so far supported by the evidence as to entitle the party to recover. Or it might well be that one theory was more acceptable, probable and consistent than another, and yet neither be sufficiently supported to warrant a finding that either theory was proven. The vice of this charge consists in defining the burden of proof as limited to a theory acceptable, probable and consistent. It cannot be so limited, for the reason that a recovery would be authorized when the case, although in theory presenting all of these elements, is still unproved. The burden of proof requires the establishment of the fact, and although the theory may meet every element suggested by the learned court for its support, it would not necessarily rise to the dignity of proving the plaintiff’s right to recover, and without such proof the case would not be established. (Taylor Ev. [9th ed.] 277; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45; Meagley v. Hoyt, 125 id. 771.) This error cannot be regarded as harmless, even though the charge of the court in other parts correctly conveyed to the jury the obligation resting upon the plaintiff. The court made definition in what the burden of proof consisted, which was not in any respect otherwise qualified or explained. The definition left the jury to find a verdict and make application of the rule, even though the case was not proved by a preponderance of evidence. That this was error the authorities establish, and for such error the judgment should be reversed.

All concurred, except Woodward, J., who read for affirmance.

Woodward, J. (dissenting):

I am unable to concur with Mr. Justice Hatch in so far as he finds it necessary to reverse the judgment in this action upon the charge of the learned trial court. It seems to me that we are in danger of refining the rules of law to the point of impracticability when we undertake to say that the charge of the trial court shall conform to the exactness which we have a right to expect in a text writer, where there is not the remotest probability that the party appealing has suffered by reason of the error alleged.

The action is one for damages sustained by the plaintiff’s intestate by reason of the alleged negligence of the defendants, and the question arises upon the charge of the learned justice at Trial Term, who told the jury that “ you must find that the plaintiff has maintained the burden of proving every essential fact by the greater weight of evidence; that is, that the theory submitted to you for your adoption, upon the part of the plaintiff, is more probable than the theory advanced upon the part of the defendants. So, if you reach that conclusion that the plaintiff has maintained the burden of proof placed upon her by law, she has established her case by a greater weight of evidence. All that means is, that the theory presented to you' by the plaintiff must be more acceptable, more probable and more consistent with your experience than the theory advanced by the defendants. If it is not, she fails.”

It is true, of course, that, considered abstractly, this is not the law; the question is not whether this or that theory is the more probable, but whether the evidence supports one or the other of the theories presented. But a reading of the charge as made by the learned court shows clearly that the language was not used in the sense of limiting the burden of proof. Throughout the charge there is a consistent and sustained effort on the part of the court to impress uj>on the minds of the jurors that the plaintiff must sustain the burden of proof upon all of the essential facts necessary to constitute her cause of action. The jury were told: If the plaintiff has failed to establish by the greater weight of evidence these two propositions, then she cannot succeed in this action; ” that “ The plaintiff here having the burden of proof; ” that “ The burden is with the plaintiff upen that disputed question of fact, the same as it is on the other questions to which I have called your attention; ” that “ If you reach the conclusion that the plaintiff has failed to establish, by the greater weight of evidence, that this street was used,” etc. After the use of the language complained of, the court explained to the jury the theories of the controversy advanced by both parties, and continued: These are the contentions of the respective parties. It is for you to say which of the parties has maintained the truth of their respective contentions. The burden rests upon the plaintiff to establish her theory by the greater weight of evidence, and if you are in doubt as to which of those theories shall prevail, then your verdict would have to be for the defendants, for the reason that the law has placed the burden upon the plaintiff to establish her case by the greater weight of evidence. * * * It is jour duty to recall to your minds all the evidence in determining the rights of these parties. If you shall say that the plaintiff has maintained the burden which the law has cast upon her and to which I have called your attention, and that these different propositions have been established by the greater weight of evidence, then you come to the question of the amount of damages,” etc.

It can hardly be successfully maintained that the charge left any confusion in the minds of the jury upon the true rule of law applicable to this case. The learned court merely intended to call the attention of the jurors to the conflicting theories, and to say to them that it was their duty to determine from the evidence, in connection with their common experience, whether the plaintiff had sustained the burden of proving by the greater weight of evidence the truth of her theory. The court was addressing itself to the case then before the jury, in the light of the conflicting theories which the court was about to point out; and in view of the subsequent statement of the rule, it is inconsistent with reason to suppose that the appellants suffered any prejudice from the language used by the court, and I am of the opinion that it does not constitute reversible error. The cases relied upon in support of a reversal of this judgment, in my opinion, have gone as far as. it is practicable in the direction indicated'. In Whitlatch v. Fidelity & Casualty Co. (149 N. Y. 45, 49) the court suggests, that In a close case like this, where the evidence on both sides is largely circumstantial, it is of vital importance that the jury should be clearly instructed as to the burden of proof and the general principles of law governing their action.” In the case cited the court below had erroneously charged that the burden of proof was upon the defendant; that the defendant in this case, in order to defend it, is required to prove by a fair preponderance of evidence the fact that' James W. Whitlatoh did take his own life intentionally; in other words, that he committed deliberate suicide. I say that the defendant has the burden of proof.” The attention of the court was called to this error by an exception, and this was followed by a request to charge the law correctly ; which is a very different case from the one at bar, where the exception is merely to “ .that part of the charge iii which you stated in connection with the burden of proof resting on the plaintiff that it means it must appear to the jury to be more probable that the plaintiff’s contention is correct than that the defendants’ is.” The charge taken as a whole could not have left any doubt in the minds of the jury that the burden of proof was upon the plaintiff to establish her theory of the case ; that was clearly the spirit of the charge; the judgment is sustained by the evidence, and no right of the defendants was prejudiced by the language of the court.

In my opinion the judgment appealed from should be affirmed, though without approval of the suggestion that the rule of law is in any manner modified by the mixing up of the law and the facts of the particular case into which the trial court inadvertently strayed.

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