Opinion
November 19, 1909.
Donald F. Ayres, for the appellant.
Francis R. Stoddard, Jr., for the respondent.
On the 28th day of September, 1908, the defendant operated a street surface railway running through Church avenue in the borough of Brooklyn, known as the Reid Avenue line. The plaintiff was a passenger on one of the cars of that line, and when running through Church avenue, near its intersection with Flatbush avenue, the car belonging to the defendant company ran into another car operated by the Nassau Electric Railway Company. This action was brought to recover for the injuries which plaintiff claims to have then sustained. The fact that plaintiff was a passenger and that the collision occurred in the manner stated was testified to both by him and another passenger on the car. The defendant introduced no testimony, but, nevertheless, judgment was rendered for the defendant. This, we think, was error. The doctrine of res ipsa loquitur "does not permit a recovery without some proof of negligence, but it regulates the degree of proof required under certain circumstances. If proof of the occurrence shows that the accident was such as could not have happened without negligence according to the ordinary experience of mankind, the doctrine is applied even if the precise omission or act of negligence is not specified." ( Robinson v. Consolidated Gas Co., 194 N.Y. 37.) When the front of a car operated by the company upon which plaintiff was a passenger ran into a car owned and operated by another company, a presumption of negligence on the part of the carrying company arises which calls upon it for an explanation. ( Loudoun v. Eighth Ave. R.R. Co., 162 N.Y. 380.) Quite a different question might be presented if a car owned by another company had struck the rear of this car. ( Elliott v. Brooklyn Heights R.R. Co., 127 App. Div. 300. ) While the burden of proof always remains upon the plaintiff to establish negligence, if there is no evidence to rebut the presumption which has arisen, the plaintiff has successfully borne his burden, and if there is proof of freedom from contributory negligence he is entitled to recover. ( Loudoun v. Eighth Ave. R.R. Co., supra.) There was no suggestion of contributory negligence on the part of the plaintiff in this action, and, therefore, he was entitled to judgment at least for nominal damages. The plaintiff testified as to his injuries and was corroborated to some extent by the physician who attended him and by his daughter and two other witnesses. The defendant apparently thought that his injury was of sufficient importance to make inquiries with regard to it, for shortly after the accident it sent an investigator and also a physician in the employ of the company to examine as to the extent thereof. It is quite likely that the plaintiff may have exaggerated the extent of his injuries and that possibly may have operated upon the mind of the learned trial judge to his prejudice. On the evidence, however, he was entitled to recover something by way of damages, and the judgment in favor of the defendant should be reversed and a new trial ordered, costs to abide the event.
WOODWARD, JENKS, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.