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Poulsen v. Nassau Electric Railroad

18 A.D. 221 Court N.Y. App. Div. English

Delivered by *222 Hatch, J.:

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p. 221
Henry Poulsen, Appellant, v. Nassau Electric Railroad Company, Respondent.

Headnote

Negligence — a child injured by jumping from a blazing electric can' — the inference from the fire, unexplained, is that the corporation was negligent ■— that a fuse blew out is not a sufficient explanation.
Where an electric car bursts into flames, and a child, who is in the car, becoming frightened, jumps out of it and is thereby injured, the railroad company operating the car is called upon to explain the cause of the fire. Proof upon its part that a fuse blew out is not sufficient to exempt the corporation from the imputation of negligence, the blowing out vf a fuse not being ordinarily-attended by any other display than a flash of light. .
Appeal by the plaintiff, Henry Poulsen, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of December, 1896, upon the dismissal of his complaint upon the merits, by direction of-the court, after a trial before the court a,nd a jnry-
The action was brought to recover damages for the loss of the services of the plaintiff’s infant child who was injured by-the alleged negligence of the defendant-, and also the expense incurred and to •be incurred in curing and attempting to cure said child.
William L. Oa/rey, for the appellant.
James O. O/mrch, for the respondent.

We are of the opinion that the ease made by the plaintiff was sufficient to call upon the defendant for an explanation of the cause of the fire.. The obligation resting upon the defendant was to exercise the utmost care and diligence suggested by human prudence and foresight to insure the safety of the passengers it had received .for carriage. (Palmer v. D. & H. C. Co., 120 N. Y. 170 .) If we assume that the cause of the fire was the burning out of the electric fuse connected with the motor, and that it was placed upon the car ■ as an appliance for its safe operation, the case would notbe changed. The effect of this assumption does not carry the case beyond the fact that' in ordinary operation the fuse blows out with an “ attendant flash,” to use the expression of the defendant’s counsel. It was not claimed upon the argument that the blowing out of a fuse, in the usual course, was attended with any other display than a flash of light, and we may take notice that the operation of street cars by electricity is not attended by the appearance of a car on fire, or that it travels upon the track in' a blaze of fire. When this phenomenon is present it. indicates an extraordinary condition and the-presence of causes which are not usually co-existent in the ordinary operation of the car. Under such circumstances, the doctrine approved by us in Gilmore v. Brooklyn Heights R. R. Co. ( 6 App. Div. 117 ) has precise application.

The child who was injured testified that she saw a blaze of fire coining from the box alongside of the mo'torman, and becoming frightened jumped from the car. Another witness stated that . she saw the car fifty or sixty feet away, coming down the street in a blaze of fire; that she also saw aflame of fire dashing through the car where the child was-sitting. Another witness was called to the door of his house by a cry that the car was on fire, and saw the car was all aflame. This testimony establishes the fact that the appearance of the car, with the attendant fire, was extraordi- ■ nary in character, and entirely different'from the' mere blowing: out of a fuse with its attendant flash. The condition- was so far extraordinary and unusufi as to call upon the defendant for explanation. If the mere fact that a fuse blew out conclusively exempted the defendant from liability, it would lead.us to the conclusion that it would be so exempted even though car and passen

p. 223
gevs be entirely consumed. We are of opinion that a case was made which authorized the jury to infer negligence and which called upon the defendant to explain. The court, therefore, erred in dismissing the complaint.

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

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

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