
    Frederick W. Webster, Resp’t, v. Elmira, Cortland and Northern Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 1895.)
    
    Negligence—Presumption.
    The fact that a passenger is injured by derailment of a car, furnishes presumptive evidence of negligence on the part of the company.
    Appeal from an order granting a motion for a new trial, made by plaintiff on a case and exceptions after the verdict had been rendered in favor of defendant.
    
      Frederick Collin, for app’lt; Parsons, Shepard & Ogden, for resp’t.
   Merwin, J.

The defendant claims that there was no good reason for granting a new trial. The order does not state the particular ground on which it was made. Both sides, however, have addressed themselves mainly to the question whether the court at circuit erred in its charge as to the presumption .that arises from the fact of .derailment, and that is the main question here. The accident happened on the 16th March, 1887. On that day plaintiff purchased a ticket for passage over defendant’s road from Canastota to Elmira. The train consisted of an engine, tender, baggage car, passenger coach, and a smoker. The plaintiff was in the smoking car. The train proceeded safely until it passed Park station. Between that station and Erin 'station, there is a four-degree curve in the track for the. continuous distance of about 1,400 feet, a portion of which is over a bridge which is 34 feet long. As the train passed round this curve, the ear in which the plaintiff was riding left the track, and, after proceeding a short distance on the ties, was overturned, and the plaintiff was injured. The engine passed along safely, but all the cars were derailed to some extent, the derailment commencing at or near the north end of the bridge. There was evidence on the part of plaintiff tending to show that the train was going very fast; that the ties were defective, and the rails spread. On the part of the defendant there was evidence tending to show that the speed was about 24 miles an hour; that the track was in good order, and the rails did not spread.

The court, in the course of its charge, said :

“ The fact that the accident occurred under the circumstances that it did is not necessarily presumptive of negligence, but it is a fact which you have a right to take into consideration, under all the circumstances of the case, and see whether it leads you to think that there was some negligence, either in the running of this train or in the condition of this roadbed, in order to cause that train to jump the track where it did.”

At the close of the charge, after a request by the counsel for plaintiff as to certain expenses, and a ruling and an exception, the following occurred:

“ Plaintiff’s counsel: We also except to the charge that the accident does not necessarily furnish presumptive proof of negligence. The court: I have charged them that it is for them to consider how far, under the evidence in this case, it is evidence of negligence. Defendant’s counsel: We ask your honor to charge the proposition, the mere fact that the train left the track raises no presumption whatever of negligence. The court: I have already chai'ged that it was not presumptive, but proper evidence for them to consider on the question of the defendant’s negligence. Plaintiff’s counsel: We desire to except to the remarks of the court to that request of the defendant. Defendant’s counsel: We request the court to charge that, although the train left the track, the burden is on the plaintiff to show that the derailment of the train was due to the negligence of the defendant, and to show that by a fair preponderance of evidence. The court: Yes, by a fair preponderance of evidence. Defendant’s counsel: If the accident was the result of the action of frost or the elements, azrd human agency was not responsible for it, the plaintiff cannot recover. The court: Unless the defendant could have provided against it by care, that is true. Plaintiff’s counsel: We except to the requests of the defendant that the court has charged against us.”

From this statement it is quite apparent that the court intended to charge, and did in substance charge, that the mere fact that the train left the track raised no presumption of negligence. The general proposition which the court had previously stated was perhaps broad enough to include all the circumstances of the accident, and relate to the general burden of proof, but the request made by defendant called the attention of the court to a particular fact, and the presumption to be derived from that alone. So that the question is, not where the burden of proof is generally, but what significance is to be given to a particular and material fact.

In Edgerton v. N. Y. & H. Railroad CVo., 39 N. Y. 227, it is said by Judge Grover :

“ The evidence showed that the car in which the defendant was riding in part ran off the track, and was broken, by means of which the plaintiff was injured. This was prima facie evidence of neg, ligence of the defendant. The latter not only had the entire control of the vehicle, but also of the track upon which it was run, and it owed a duty to the plaintiff to keep both in a perfect and safe condition for the transportation of passengers with entire safety, so far as human prudence can accomplish these results. Experience proves that when the track and machinery are in this condition, and prudently operated, the trains will keep upon the track, and run thereon with entii’e safety to those on board. Whenever a car or train leaves the track, it proves that either the track, or machinery, or some other portion thereof, is not in a proper condition, or that the machinery is not properly operated ; and presumptively proves that the defendant, whose duty it is to keep the track and machinery in the proper condition, and to operate it with the necessary prudence and care, has, in some respect-violated this duty.”

This language was approved in Seybolt v. N. Y. L. E. & W. Railroad Co., 95 N. Y. 562, 568, and the general rule was said to be that in an action by a passenger against a carrier for negligence, where the plaintiff has shown a situation which could not have been produced except by the operation of abnormal causes, the burden then rests upon the defendant to prove that the injury was caused without his fault. A like view was taken in Caldwell v. N. J. Steamboat Co., 47 N. Y. 282, 293, where it was said to be a rule of the common law that, where an act takes place, which usually, and according to the ordinary course of things, would not happen if proper care was exercised, it is presumed, that such care was not observed. Murphy v. Coney I. & B. Railroad Co., 36 Hun, 200. In Feital v. Railroad Co., 109 Mass., 398, which was an action against a street-railway corporation for injuring a passenger, it was held that proof that the injury was caused by a car running off the track at a place where the track and the car were under the exclusive control of the defendants was sufficient to charge them with negligence, in the absence of any evidence that the accident happened without their fault. In Railroad Co. v. Williams, 74 Ind. 464, it was held that when the fact has been established that a passenger in a railroad car has be.en injured, without his fault, by the car in which he was ridingbeing thrown from the track and upset, the law will presume negligence on the part of the railroad company, unless the evidence shows there was not. The doctrine of the Fdgerton Case was approved, and numerous other cases cited as sustaining the same view. See, also, 2 Wood, Ry. Law, 1095, 1096; 2 Am. & Eng. Enc. Law, 768; Hutch. Carr. § 800.

We are of the opinion that the court erred in charging that the fact that the train left the track raised no presumption of negligence. This error furnished a sufficient reason for granting a new trial. We cannot fairly say that the charge in this respect did not influence to plaintiff’s disadvantage the jury. The order, therefore, should be sustained.

Order affirmed, with costs.

All concur.  