
    Mary Wiedmer, Resp’t, v. The New York Elevated Railroad Co., Appl’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    Negligence—Elevated railroad—Dropping burning coals is not always negligence—Burden of PROOF.
    In an action to recover damages for the alleged negligence of the defendant, the only evidence in support of the action was that the plaintiff while walking on Third avenue, at One Hundred and Twenty-seventh street, saw fire falling from the elevated road, and that a spark of burning coal about the size of a pin head lodged in her eye, which was removed therefrom on the following morning. There was no direct evidence that the locomotive from which the coal came was defective in design, construction, condition or operation, or that it was not supplied with the best known appliances for arresting sparks and cinders. It did not appear that the locomotives used by the defendant were accustomed to drop sparks or coals, or that there was anything omitted which ought to have been done by the employees in charge of defendant’s train on this occasion. Held, That the rule r<s ipso loquitur has not been extended far enough to authorize the inference from these facts that the defendant was guilty of actionable negligence.
    Appeal from a judgment of the supreme court general term, first department, reversing an order granting a new trial and affirming a judgment entered upon the verdict rendered by a jury.
    In the afternoon of August 18, 1879, as the plaintiff was walking north on the east sidewalk of Third avenue, in the city of New York, between One Hundred and Twenty-sixth and One Hundred and Twenty-seventh streets, a hard substance entered and injured her right eye. At this time the defendant operated an elevated railroad in this avenue, by locomotives which were propelled by the power of steam. The plaintiff alleged in ner complaint that the substance which entered her eye was a hot coal, and that it fell from a passing locomotive by reason of defendant’s neglect to furnish it with proper appliances to prevent the emission of sparks and burning coals; and by reason of the negligent manner in which the defendant, at the time, operated the locomotive. The defendant admitted that it was a corporation engaged in operating an elevated railroad by the power of steam in Third avenue and other streets, but denied all of the other allegations in the complaint.
    The plaintiff testified:
    “ Q. On the afternoon of August 18, 1870, did you take a walk with your two children ? A. Yes, sir. ,
    Q. Walking along the sidewalk towards Harlem bridge ? A. Yes, sir.
    Q. State to the jury what happened ? A. I went towards One Hundred and Twenty-seventh street, and a spark of fire flew from the engine into my eye; a piece of hard coal' fell upon my eye.
    Q. Which eye was it ? A. The right eye. I suffered so much during the whole night that in the morning I went down to Weber’s drug store ; I asked him if he could see anything in my eye—that a coal fell from the elevated road, and he took a little brush and put it in my eye, and brushed out a piece of coal, because I got pain from the eye. I suffered all the time.
    Q. How large a piece of coal was it? A. Not quite as large as a pin head.
    Q. Was it burning coal? A. Yes, sir.
    Q. How soon after this piece of coal flew in your eye did you call upon Mr. Weber? A. On Monday morning, about 7 o’clock * * * Q. Where did it happen that the piece of coal from defendant’s engine flew into your eye? A. ■Near 127th street, on the right hand side.
    Q. What did Mr. Weber do to the eye? A. He took a little brush and brushed the piece of coal out. * * *
    Cross-examined by defendant’s counsel:
    Q. You did not go (to Mr. ■ Weber), the same day that the injury occurred? A. No, sir.
    Q. Was the eye painful as soon as the cinder went, into it? A. Yes, sir, it pained all. the time like as if there was. fire in it.
    Q. And that is the reason that you think it was a burning cinder? A. Yes, sir.
    Q. You did not see the cinder burning? A. Fire flew down and a piece of hard coal fire flew in my eye.
    
      Q. You bathed it all night in cold water? A. Yes, sir.
    Q.' Did you see the cinder come from the engine? A. I saw fire come down, and a piece came into my eye.
    Q. You do not positively know that it came from the road? A. Yes, sir.
    Q. Did you see it come all the way down? A. I saw that the fire flew from the elevated, and a piece flew into my eye.
    Q. I should think you would have turned your eye away when you saw it coming, or turned your head. Did you not think of that? Did not that occur to you, to turn your eye away? A. No, sir.
    Q. You saw the cinder coming all the way from the train? A, Yes, sir.
    Q. Until it reached you? A. Yes, sir.
    Q. When you saw it coming why did you not turn away your eye? A. It came so quick.
    Q. I understand you to say that you saw it come all the way from the train to your eye? A. The fire flew down, and the piece flew into my eye.
    Q. Did you see it start from the engine? A. I saw the fire that flew down, and as soon as it got down I had it in my eye.
    Q. You saw something coming m the air, that struck you in the eye? A. Fire flew from the engine, and I got a piece of it in my eye.
    Q. You saw it all the way from the engine? A. Yes, sir, it flew so quick, and it flew in my eye so quick.
    The foregoing is all of the evidence tending to establish the defendant’s liability; and after giving evidence bearing upon the question of damages, the plaintiff rested. The defendant offered no evidence, and moved to dismiss the complaint, upon the ground that the plaintiff had not. established a cause of action. The motion was denied, and the defendant excepted. The defendant then asked the court to direct a verdict for the defendant upon the same-ground, which was denied, and an exception taken. The-jury rendered a verdict for $2,000, which was set aside, and a new trial ordered at circuit upon a motion made upon the minutes. This order was reversed by the general term and a judgment ordered for the plaintiff on the verdict, which was entered, and from which, and the order, the defendant appeals.
    
      Charles Steckler, for plaintiff, respondent; Edward S. Rapallo, for defendant, appellant.
   Follett, Ch. J.

Each party to this action was rightfully in this street and engaged in a lawful pursuit. No-contractual relations existed between them, and neither owed the other any duty not due to all persons lawfully using the street. There is no direct evidence that the locomotive from which the coal came was defective in design, construction, condition or operation, or that it was not supplied with the best known appliances for arresting sparks and cinders. It does not appear that more than this one coal came from the locomotive on this occasion, or that sparks or coals were emitted from it, or from any of defendant’s locomotives, on other occasion. There is no evidence that on this occasion the employees in charge of defendant’s train did an act which ought not to have been done, or omitted to do an act which ought to have been done.

The counsel for the plaintiff contends that the evidence is sufficient, in the absence of explanatory evidence in behalf of the defendant, to authorize the jury to infer, from the falling of this coal, that the defendant negligently used a locomotive improperly designed, defectively constructed, out of repair, or negligently operated.

The evidences discloses an isolated colorless fact, the emission of a coal smaller than a pin head, and the rule, res ipso loquitur, has not been extended far enough to authorize the inference from this fact, that the defendant was guilty of actionable negligence. It is urged that the rule, that the burden is upon the party averring negligence to affirmatively establish it, should not be given its usual force or signification in this case, because, it is said, that the defendant could more easily have proved the condition of the locomotive than the plaintiff. The plaintiff did not, by her complaint or evidence, inform the defendant from which train the coal fell, in which direction the train was going, the hour of the accident, or of any facts by which the defendant could have learned which locomotive ■emitted the coal; and, in the absence of the slightest evidence that defendant knew, or had The means of identifying the locomotive complained of, or that there were appliances in general use by which the emission of sparks of the size of the one which entered the plaintiff’s eye, might have been prevented, we think the fact that the defendant did not voluntarily assume the burden of showing the condition of all of its locomotives in use on that part of its line, during the afternoon of August 18, 1879, should not have been allowed to weigh with the jury.

The evidence of negligence in the case at bar falls far short of that given in Ruppel v. Manhattan R. Co., 13 Daly, 11; Burke v. Manhattan R. Co., id.,, 75, or in McNaier v. Manhattan R. Co., 46 Hun, 502; Second App., 4 N. Y., Supl., 310.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Potter and Bradley, JJ., dissenting.  