#### Carrie Baum, Respondent, *v.*New York and Queens County Railway Company, Appellant.

Second Department,

January 24, 1908.

Trial—charge criticised — res ipsa loquitur — burden of proof.

It is unscientific and incorrect to charge that where the happening of an event causing an accident raises a pre'suniption of negligence the burden shifts to the defendant to show that it had performed all- that the law required and that it was not incumbent upon the plaintiff to prove by a fair preponderance of evidence that the event occurred through the fault of the defendant.

This, because in truth and in law there is no shifting of any burden to the defend- ■ ant at all at any time or in any case. The plaintiff cannot shift his burden to the defendant. The plaintiff must make out a case to avoid being nonsuited and then the defendant must take up -his own burden to meet that case.

*13But when the defendant makes no request that the court charge that the burden is on the plaintiff to make out his case by a preponderance of evidence in his favor over that in favor of the defendant and takes exception solely to the specific charge aforesaid (which may be interpreted as relating only to the rules of evidence governing the progress of the trial) and the whole case shows conclusively that the defendant was not harmed by the unscientific use of language, a verdict for the plaintiff will not be reversed.

Precise exactness of expression cannot always be required in the oral charge of the trial judge, and especially not greater exactness than that used in the written opinions of courts of appeal, and, although it may not be strictly scientific, the defect is not ground for reversal if the party has not been harmed thereby.

Proof that the plaintiff, a passenger, was injured by the flying up of a trap door in the floor of a trolley car raises a presumption of negligence.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of November, 1906, upon the verdict of a jury for $1,000, and also from an order-entered in said clerk’s office on the 26th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes.

The County Judge charged as follows: “In this character of action where something happens in a trolley car, which is unusual, as happened in this car on which this plaintiff was riding, the law presumes that something was the matter with the car, or such a tiring as that would not have happened. In other words, all the plaintiff has to do is to show that that unusual thing occurred, and then the burden shifts to the defendant to show that it had performed all that the law requires of it to perform. It is not incumbent upon the plaintiff in this case to prove by a fair preponderance of evidence that that trap-door flew rtp through the fault of the defendant. She is only required to prove that it flew up, and then the. burden shifts to the defendant to show or to explain that unusual happening.”

*Edward J. Byrne*[ *Van Vechien Veeder*with him on the brief], for the appellant.

*George F. Hielcey \_1£ P. O'Gonnor*with him on the brief], for the respondent.

*14Gaynor, J.:

Of course the rule is that the burden of proof was on the plaintiff, and that at the close her case had to be made out by a preponderance of the evidence in her favor over the evidence in favor of the defendant in order that she might be entitled to a verdict. But the learned county Judge was not charging this rule, or in respect of it. He was only charging the general rules of evidence which governed the course and stages of the trial, which he had to do. The two things are entirely distinct. What he said was in substance that the evidence that the trap door in the floor of the car flew open and struck her was sufficient to make out a case to go to the jury, and that it required evidence from the defendant to show or explain the cause/ This was correct as a rule of evidence governing the progress of the trial. ■ The maxim íliat the thing speaks for itself applies, *i. e.,*the flying up of the door raised a presumption that there was something wrong with the car by the defendant’s negligence, and that presumption was,evidence which made out a case for the plaintiff to go to the jury. The defendant was therefore required at that stage of the trial by the rules of evidence to put in any evidence which it had to show the cause of the occurrence — or, in other ' words, that the occurrence did not happen from its negligence — if it desired to do so. It would seem that the learned county Judge had before him the opinion of the present Chief Judge of the Court of Appeals in *Griffen*v. *Manice*(166 N. Y. 188), for he followed its language quite closely, in fact almost literally. He said that' “ She ” (the plaintiff) “ is only required to prove that it ” (the trap door) “flew up,-and then the *burden shifts*'to the defendant- to *show*or to *explain*that unusual happening ”.- This was the last thing he said on the subject, and it was to it only, specifically and' in terms, that the exception which we are considering wras taken, viz., “ I except to that portion where your honor said that the burden shifts to the defendant”. This in terms refers to *shifting,*during the course of the trial, and not to the settled condition which the case has reached at the close of the evidence, when the test of the rule of prejionderance is reached. There is no *shifting*after that. Once previously the learned Judge had said substantially tiie same thing, viz., “all the plaintiff has to do'is to show that that unusual thing occurred, and then the *burden shifts*to the defendant to *15show that it had performed all that the law requires of it to perform ”, *i. e.,*that it was' not chargeable with .negligence, which is the equivalent of the language used. Now, in *Griffen*v. *Manice*the learned Chief Judge, discussing the very same subject — and the .case is a leading one on it, and trial Judges thumb it before charging juries and we before deciding — said : “ Neither of these rules — that a fact may be proved by circumstantial evidence as well as by direct, and that where, the defendant has knowledge of a fact, but slight evidence is requisite "to *shift*on him the *burden*of *explanation*— is confined to any particular class of cases ”, etc.; and an opinion in this court later followed and used substantially the same language, viz., that the happening of the thing — the blowing out of a fuse in a street car — “ was enough to *throw*the *burden*of *explaining*the cause of the accident upon the defendant” (*Williams*v. *N. Y. & Queens Co. R. Co.,*97 App. Div. 133).

Now, though it be true that the use of the terminology or "phrase of shifting the burden to the defendant is crude and unscientific, if not wholly incorrect and misleading, it does not seem on the whole that it presents any error in this case. It conveyed a meaning to lay mjnds which did no harm. In truth and in law there is no shifting of any burden to the defendant at all at any time or in any case. The plaintiff cannot shift his burden to the defendant. The plaintiff must make out a case to avoid being non-suited, and then the defendant must take up his own burden to meet that case; and that is all there is of it either loosely or scientifically. Nothing that was on the plaintiff is shifted onto the defendant. But if Judges on appeal in taking time and deliberation to write their opinions use such an expression, how are we' to expect that county Judges shall not do the same in their unprepared oral utterances in charging juries? We cannot apply a rule of perfection to their utterances or to trials of causes;. we no more than any of the sons of men are capable of conforming to such a rule ourselvés.

If the defendant’s counsel wanted the court to charge the other rule (which it had omitted to charge), viz., the rule as to the burden being on the plaintiff to make out his case by a preponderance of the evidence in his favor over that in favor of the defendant — which is entirely distinct from the general rules of evidence which govern the progress and stages of the trial — he should have *16requested that it be charged. Instead, he took an exception to a specific sentence in the Judge’s charge which was not on that head at all.' The whole case shows: conclusively that the defendant was not harmed by the Unscientific use of language into which the learned trial Judge was misled. ' '■■ ■•

The judgment should he affirmed.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Judgment and order of the County Court of Queens county' unanimously affirmed, with costs. .