
    Louis Ludwig, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence —fall caused by an electric shock to a pedestrian stepping upon a slot rail of an underground trolley street surface railroad— res ipsa loquitur — when the presumption raised thereby is not overcome so as to require that the case be taken from the jury —proper, charge as to the burden of proof.
    
    In an action to recover damages for personal injuries, the plaintiff gave evidence tending to show that while pressing the defendant’s electric street surface railway in the city of New York, which was operated by the underground trolley system, he stepped upon a slot rail and received a shock of electricity which precipitated him to the ground and caused him to break his leg; that immediately before the accident he observed a flash of electricity pass from the slot. A snow storm was in progress at the time of the accident, and an expert called by the plaintiff testified that the slot rails might become charged with-electricity if the insulation between them and the conductor rail was imperfect, or if there was sufficient snow in the conduit to form a contact between the slot rail and the conductor, or if an excessive' amount of rain or moisture settled on the conductor rails and got into the insulators.
    The defendant employed a device known as a conduit plow or scraper for removing snow or mud from the conduit, and it appeared that these, plows or scrapers were brought into use when the snow storm commenced and were kept on the lines throughout the storm. It further appeared that the defendant employed devices which would enable it to discover the location of any leak of electricity from the conductor rails, and by which it could cut the electric current from the section on which the leak occurred. The track master, chief engineer and electrical engineer of the defendant testified that they received no notice of any ground or leak at the time of the accident, but no one iñ direct charge of the appliances for indicating a leak was called to give testimony as to whether any leak was indicated or record made thereof. '
    
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That the doctrine of res ipsa loquitur applied to the case and that the trial court properly instructed the jury that if the injuries were received through an electric shock, from electricity escaping from the defendant’s rails, negligence on its part would be presumed “to such a degree as to call upon the defendant for an explanation and to put it to its proof; ”
    That the court should have charged as requested by the defendant, that the plaintiff could not recover unless he proved the allegations of his complaint by a preponderance of evidence, and also that “ the mere fact that an accident happened and that plaintiff was injured is not sufficient to justify a recovery by the plaintiff, but the plaintiff must prove that he was injured by reason of some negligent act or breach of duty on the part of the defendant,” but that the refusal of the court to charge such requests did not constitute prejudicial error, it appearing that the court had already charged such requests in substance and that, as the requests were not read aloud, the jury could not have obtained an erroneous impression from the failure of the court to grant them; That the defendant was not entitled to have the court charge a request, which recited the concededly proper construction of the road, and that there was no evidence that the electric current could escape except as a consequence of the snow storm, and asked that the jury be instructed that, if it should “find that the snow storm was in fact the cause of the plaintiff's injury, the defendant is not responsible for that, and the jury must render a verdict in favor of the defendant,” as it was based upon erroneous assumptions;
    That the presumption of the defendant’s negligence, raised by the doctrine of res ipsa loquitur, was not so clearly and satisfactorily met as to require the case to be taken from the jury, especially as the evidence tending to overcome such presumption was given by the defendant’s employees.
    Van Brunt, P. J., and McLaughlin, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 13th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Joseph G. Williamson, Jr., for the respondent.
   Laughlin, J.:

This action is brought to recover damages for personal injuries alleged to have been sustained by plaintiff Through defendant’s negligence. Upon the trial plaintiff gave evidence tending to show that as he was walking across Second avenue on the southerly crosswalk of One Hundred and Sixteeth street, toward the west, at about seven o’clock in the evening, on Sunday, the 12tli day of February, 1898, he stepped with his right foot upon the slot rail between the rails of the north-bound track of. the defendant’s road and received a shock of electricity in his foot and leg, which precipitated him to the ground, whereby he sustained a fracture of both bones of his right leg below the knee in the region known as the lower third. There had been quite a severe snow storm since nine o’clock in the evening before, the snow falling at intervals all day,' about five inches having fallen altogether. The average temperature on the twelfth was four degrees below zero. Plaintiff’s shoes were wet and he had no rubbers on. He testified that before stepping on the track he waited for a north-bound car to pass and that he observed a flame- or flashes of electricity from the slot under the car or following a few feet behind it, as it passed over the crosswalk and up into the block beyond.

The opening between the slot rails, which are even with the surface- -of the street, is from, three-quarters of an inch to an inch in width. Below the slot rails is a cement conduit, elliptical in form, about eighteen inches deep and from thirteen to sixteen inches wide. The conduit is in part formed of iron yokes set five feet apart, which support the tram rails and slot rails. In this conduit and from nine to thirteen and a half inches below the surface of the slot rails, there are suspended two conductor rails, one upon either side and about three inches from a perpendicular to the center of the slot. These conductor rails are supported by porcelain insulators carried in cast iron caps which are bolted, to the slot rails. A steel plow projects from ■ the car through the slot, and forms a sliding contact with the conductor rails, and thus transmits the electric current to and from-the motor in the car. The electric current is supplied to the conductor rails in separate sections, fed separately from the power house. In the defendant’s power house, situated at One Hundred and Forty-sixth street and Seventh avenue, it had devices known as ground detectors for the purpose of indicating a ground or leak of electricity from the conductor rails-; and these ground detectors and other appliances enable the defendant to promptly discover the section in which the leak occurs. The defendant also had appliances by which, upon discovering a ground or leak on any particular section, the current on that section could be immediately entirely cut off. An expert called by the plaintiff testified that the defendant’s underground trolley road was constructed in 1897 or 1898 by the very best methods in vogue, and that these were the approved appliances in use for such purposes. It appeared from his evidence that the slot rails might become charged with electricity if the insulation between them and the conductor rails was imperfect or if sufficient snow was in the conduit so as to form a contact between the slot rails and the conductor rails or if an excessive amount of rain or moisture settled on the conductor rails and got into the insulators, but in no other way.

There is a device known as a conduit plow or scraper, for removing snow or mud from the conduit. In the bottom of the conduit there are cleaning pits at intervals of 200 feet. The scraper or plow is on the end of an iron shank which passes through the slot and may be attached to a car. It scrapes the mud or snow into the cléaning pits, from which it is removed by hand. The defendant had two of these scrapers or plows on the line operated by horses. Evidence was introduced in its behalf tending to show that when this snow storm set in its snow sweepers were brought into use, and also these conduit plows or scrapers, and kept on the line throughout the storm. The evidence showed 'that this line was about six miles in length, and that these scrapers or plows would make a round trip over it in about an hour and ten minutes, and could go as fast as the passenger cars. The trackmaster, chief engineer and electrical engineer of the defendant testified that they received no notice of any ground or leak at that time, but no one 'in direct charge of defendant’s appliances at the power house for indicating a leak was called to give testimony as to whether or not any leak was indicated or record made thereof. In these circumstances, every inference warranted by the • evidence would be indulged in against the defendant,' which, presumably having the evidence in its possession, omits to produce the same or explain the omission. (Wylde v. Northern R. R. Co. of N. J., 53 N. Y. 156 ; Matter of Randel, 158 id. 216.)

There was a sharp question of fact for the determination of the jury as' to whether the plaintiff’s injuries were sustained in consequence, of an electrical shock or by his slipping upon the rail. The court fairly submitted this question to the jury, and in the charge in chief instructed them that the burden of proof was on the plaintiff of showing that his injuries were caused by an electric shock. The doctrine of res ipsa loquitur we think properly applies to this case, and the trial court properly instructed.the jury that if the injuries were received through an electric shock from electricity escaping from the defendant’s rail, negligence on its part would be presumed to such a degree as to call upon the defendant for an explanation and to put it to its proof.” (Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51.)

Three exceptions are specially urged upon this appeal as constituting reversible error. They were taken to. the refusal of the court to charge three requests presented by counsel for the defendant. The record-indicates that these requests were not read to the jury. They appear to have been merely handed up to the court, and the court having failed to instruct the jury as requested, exceptions were taken to the refusal of the court to charge- the requests, which' were referred to by numbers. The first request recited the plaintiff’s claim as alleged in the complaint and requested an instruction that the plaintiff was bound to prove the allegations of his. complaint by a preponderance of evidence; otherwise, that he could not recover. The thirteenth recited the concededly proper construction of the road and that there was no evidence that the electric- current could escape except as a consequence of the snow storm, and requested an instruction that “ if the jury find that the snow storm was in fact the cause of the plaintiff’s injury, the defendant is not responsible for that, and the jury must render a verdict in favor of the defendant.” The seventeenth'was as follows : “ The mere fact that an accident happened and that plaintiff was injured is not sufficient to justify a recovery by the- plaintiff, but the plaintiff must prove that he was injured by reason of some negligent act or breach of duty on the part of the defendant.”

The thirteenth request was properly refused. It erroneously assumed that there was no evidence that the electric current could escape except in consequence of the snow storm; and it likewise erroneously assumed that the defendant would not he liable if the escape of the electric current was caused by the snow storm, regardless of whether the defendant exercised care to remove the snow. The first and seventeenth requests were proper, and the only ground upon which the refusal of the court to charge as therein requested can be justified is that these requests had already been fairly charged in substance.

As has been seen, these requests were not read aloud; therefore, the jury could not have obtained an erroneous impression from the failure of the court to grant them. Furthermore, I think the learned trial justice fairly, fully and impartially instructed the jury upon the subject. The court instructed the jury that the defendant’s duty was to exercise ordinary care, which is that care that an ordinarily prudent person would exercise under like circumstances, in view of all the circumstances requiring the exercise of watchful care and prudence to prevent the escape of the electric current. The learned trial justice stated to the jury that the plaintiffs claim was that the escape of electricity was due to the failure of the defendant to clear its slot rails of snow or other substances producing moisture, and.then drew their attention to the testimony introduced by the defendant tending to show that it had exercised care in removing the snow and other substance that might be in the conduit, and said to them : If you believe such testimony it will be your duty to render a verdict for the defendant. No evidence ■ to the contrary of the defendant’s witnesses as to the cleaning of the tracks and of the slot rails has been given, except such as might be inferred from the accident, in question.” Evidence was given on the part of the defendant tending to show that it would be impossible for the slot rails to become charged with electricity, and the court instructed the jury that if they believed this evidence it would be their duty to render a verdict in favor of the defendant. The jury were also instructed that if the defendant had given a sufficient explanation of the accident, or if the accident Was unavoidable and could not have been prevented or guarded against by the exercise of ordinary care and prudence, they should render a verdict in favor of the defendant. The court also charged-that if the jury should find from all the facts and .circumstances .that the plaintiff was free from contributory negligence, that the accident 'was due to an electric shock and not to a fall in consequence of the slippery condition of the sidewalk, that the accident was not inevitable, but one that could have been prevented or guarded against by the exercise of ordinary care and prudence, and that the defendant was guilty of negligence, then they should render a verdict in favor of the plaintiff. At the close of the charge the court again, at the request of plaintiff’s counsel, instructed the jury that if the slot rails were alive with electricity and the" defendant, by the.exercise of ordinary care, could have discovered and remedied it, the defendant was liable, provided the plaintiff received a shock of electricity which caused his injuries. The court, both at the request" of defendant and at- the request of plaintiff, charged that the burden of proof rested on the plaintiff, and that unless' he established, by a fair preponderance of evidence satisfactory to the jury, that; his injuries were caused by some negligence on the part of the defendant, he was not entitled to. recover. The court again, at "the request of defendant, instructed the-jurydhat if the evidence-was as consistent with the absence of negligence- on "the" part of the defendant as with its negligence, then the plaintiff could not recover because the plaintiff was “ bound to make out more than a balanced-case.” The court further instructed the jury, at the request of "the'.defendant, that, there being no contractual relations between the plaintiff and defendant, the former could not recover “ without affirmative proof that the defendant did not exercise ordinary care in--the construction, management and operation of-its railroad on the occasion -in.qnestion.”

It is difficult to see how, in view of the charge delivered by the court, the jury could have entertained the belief that .-the mere happening of the accident and injury to the plaintiff Was, sufficient to justify a recovery, or that the burden of proof was’ not upon the the plaintiff to establish the negligence alleged by a" fair- preponderance of evidence. , . -,-

The appellant contends that it has OvérCome. the "presumption of negligence on its part raised by the doctrine of rés, vpsa-.'loquitur. It did not sufficiently overcome the presumption as matter of law. The question was still for the jury to weigh the evidence introduced on the part of the defendant, in the light of the legal presumption of negligence arising from the happening of the accident, and deter-.. mine from the whole whether the plaintiff had sustained the burden of proof which rested upon him of establishing that his injuries-were caused through the negligence of the defendant. (O'Flaherty v. Nassau Electric R. R. Co., 34 App. Div. 74; S. C. affd., 165 N. Y. 624; Kennedy v. McAllaster, 31 App.Div. 453; Smith v. Met. St. Ry. Co., 59 id, 60; Clarke v. Nassau Electric R. R. Co., 9 id. 51; Jones v. Union Ry. Co., 18 id. 267; Kister v. Manhattan Ry. Co., 40 id. 441; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418.)

Of course, if the defendant exercised proper care and without-negligence on its part the insulators got out of repair, or the electric-current escaped owing to snow or moisture, it would not be liable unless it failed to remedy the defect within, a reasonable.time, after-actual or constructive notice-thereof. (Casper v. Dry Dock, E. Broadway & Battery R. R. Co., 56 App. Div. 372.) In this case,, however, the presumption of negligence was not so clearly or satisfactorily met as to warrant or require that the case be taken from the jury. Furthermore, the evidence tending to overcome the presumption of negligence was given by defendant’s employees, whose credibility was for the jury (Volkmar v. Manhattan Ry. Co., supra ; Eastland v. Clarke, 165 N. Y. 420, 430 ; O'Flaherty v. Nassau Electric R. R. Co., supra.)

The only other error assigned by appellant is the admission, of expert testimony of the fact that if .the slot rail was charged with"'electricity and plaintiff stepped upon it, under the conditions existing at the time which Were recited in the hypothetical question, he would receive an electric shock. The witness was an electrical engineer, had had-a large experience, knew the effect of electricity upon the human body, and was thoroughly conversant witli the subject. We think the evidence was competent.

The verdict is reasonable in- amount, and the judgment and order should be affirmed, with costs.

Patterson and O’Brien, JJ\, concurred; Van Brunt, P. J., and; McLaughlin, J., dissented.

McLaughlin, J.

(dissenting) :

I dissent. I think the court erred in refusing to charge the defendant’s seventeenth request, which was as follows : The mere fact that an accident happened and that plaintiff was injured is not sufficient to justify a recovery by the plaintiff, but the plaintiff must prove that he was injured by reason of some negligent act or breach of duty on the part of the defendant.” It is conceded in the prevailing opinion that this request was proper, and that the refusal to charge as requested would have been erroneous and necessitate a reversal of the judgment were it not for the fact that it had, in substance, already been charged.

I am unable, after a careful consideration of the charge as made, to discover where the court charged the proposition requested, even in substance. In the main charge the court, after stating that, the burden was upon the plaintiff of proving that he fell by an electric shock, then qualified such instruction by saying if the jury found that the fall “ was 'due to an electric shock, * * * all that is necessary, under such circumstances, for the plaintiff to do, is to prove the injury, and negligeiice on the part of the defendant will be presumed to such a degree as to call upon the defendant for an explanation and to.put it to its proof.” This is equivalent to saying if the jury believed the plaintiff’s testimony to the effect, that his fall was caused by a shock of electricity ? then the negligence of the defendant necessarily followed as a legal conclusion; in other words, if the plaintiff’s'fall was caused by an electric shock, that then the burden was upon the defendant to prove its freedom from negligence. Nowhere did the court instruct the jury, so far as I am able to discover, that upon the question of defendant’s negligence, even though plaintiff’s fall was caused by a shock of electricity, the burden of proof was, nevertheless, upon the plaintiff. Defendant was entitled to have the jury so instructed. (Kay v. Met. St. Ry. Co., 163 N. Y. 447; Jones v. Union Ry. Co., 18 App. Div. 267.)

I am of the opinion, therefore, that the judgment should be reversed and a new trial ordered.

Van Brunt, P. J., concurred.

Judgment and order affirmed, with costs.  