Opinion
December 3, 1909.
Francis R. Stoddard, Jr., for the appellants.
Michael F. Conry, for the respondent.
The defendants appeal from an order of the Appellate Term reversing a judgment of the Municipal Court in favor of defendants dismissing the complaint. The defendants offered no evidence, resting upon the case made by the plaintiff's proofs, and the complaint was dismissed against both defendants upon the ground that the plaintiff had failed to prove that the accident by which he was injured was the result of the negligence of either defendant. The defendants both own and operate lines of electrical railways in the borough of Brooklyn, city of New York. The plaintiff was a passenger on a car belonging to defendant the Nassau Electric Railroad Company. A collision occurred between the car in which plaintiff was riding and a car belonging to the defendant the Brooklyn Heights Railroad Company, in consequence of which plaintiff was injured. No evidence was offered showing how the collision occurred or which company was at fault. It is well established that in such a case the mere happening of the accident raises a presumption of negligence on the part of the carrying company, and casts upon it the task of showing that it was free from fault. This results from the high degree of care required from a common carrier towards its passengers. ( Loudoun v. Eighth Avenue R.R. Co., 162 N.Y. 381; Duhme v. Hamburg-American Packet Co., 184 id. 404; Henson v. Lehigh Valley R.R. Co., 194 id. 205.) The same rule, however, does not apply to the owner of the colliding car in which plaintiff was not a passenger. ( Falke v. Third Ave. R.R. Co., 38 App. Div. 49.) The complaint was, therefore, properly dismissed as to the Brooklyn Heights Railroad Company, but improperly dismissed as to the Nassau Electric Railroad Company. The determination is, therefore, affirmed as to the Nassau Electric Railroad Company, and as to the Brooklyn Heights Railroad Company it is reversed and the judgment of the Municipal Court affirmed, without costs to either party as against the other in this court or in the Appellate Term.
INGRAHAM, McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred.
As to Nassau Electric Railroad Company, determination affirmed, and as to Brooklyn Heights Railroad Company, determination reversed, and judgment of Municipal Court affirmed, without costs.