#### Mary A. Tyndall, as Administratrix, etc., of James J. Tyndall, Deceased, Appellant, Respondent, *v.*The New York Central and Hudson River Railroad Company, Respondent, Appellant.

Third Department,

May 7, 1913.

Master and servant—negligence — injury to engineer of train wrecked by obstruction on track—res ipsa loquitur.

In an action to recover for the death of plaintiff’s intestate, resulting from injuries received by the wrecking of defendant’s passenger train, of which he was engineer, caused by a ear door dropping from a freight train of defendant and failing across the track in front of the passenger train, the fact that the car from which the door fell, although belonging to another company, was under the control of the defendant; that the socket, a part of the locking device of the door, was gone, so that the door could not be locked; that the wood underneath where the socket had been looked weather beaten, and a staple holding the chain by which the door could have been fastened was gone, raised a presumption of negligence of the defendant, so that the doctrine of *res ipsa loquitur*applied, and the question whether the evidence introduced by the defendant overcame this presumption should have been submitted to the jury.

*187Cross-appeals — By plaintiff from so much of an order, entered in Eensselaer county clerk’s office September 7, 1912, as sets aside a verdict in favor of the plaintiff and grants a new trial, upon the grounds that said verdict is contrary to law.

By defendant from so much of the same order as denies defendant’s motion to dismiss the complaint.

*John T. Norton,*for the plaintiff.

*Robert E. Whalen,*for the defendant.

Howard, J.:

The plaintiff’s intestate died as a result of injuries received by the wrecking of one of the defendant’s fast north-bound passenger trains, of which he was engineer, about eight miles north of Hudson. The wreck was occasioned because a door had dropped from one of the cars of a freight train of the defendant going south, and had fallen across the north-bound track. The freight train had passed only a few minutes before the time of the accident. The car was a Lehigh Valley car. It was loaded properly at St. Louis with photographic dry plates. At West Seneca, N. Y., it was noticed that the seal which was put on at St. Louis was gone and a new seal was put on. After the accident an examination of the car in question showed that the socket, a part of the locking device of the door, was gone, and that the wood underneath where the socket had been, looked weather-beaten. A staple which held the chain to which was attached the pin for the hasp was gone. One of the boxes which constituted the load was turned somewhat “ kitty-corner,” otherwise the load was not apparently out of place. Some of the end boards of the car were shoved out of position down near the floor. The car had been several times inspected by the defendant and not found defective.

All questions of negligence on the part of the defendant were removed from the consideration of the jury by the trial justice except such as were embraced within the following questions, which only were submitted to the jury:

> (1) “ What caused the accident ? ”

> (2) “Was it the duty of the defendant to use ordinary care *188and prudence to so adjust that load as to not cause the door to bulge out and to be forced from the car ? ”

> (3) “Was the defendant negligent in that respect? Did it fail to do anything which in the exercise of reasonable care and forethought it ought to have done ? ”

After the verdict, upon reflection and consideration, the trial justice concluded that he had adopted an “ erroneous criterion of responsibility,” and for that reason he set aside the verdict.

The law seems to be well settled that the loading of a car is not an act pertaining to the duty which the master owes to his servants, and that, therefore, the master is not liable for negligence in the loading of cars. The car is the appliance, and for negligence in furnishing the *appliance*the master *is responsible*/ the loading of the car is the use of the appliance, and for negligence in the *use*the master *is not liable. (Byrnes*v. *N. Y., L. E. & W. R. R. Co.,*113 N. Y. 251; *Bailey*v. *D. & H. C. Co.,*27 App. Div. 305.) While there might arise instances in the loading of open cars where this rule would not apply, it seems to be particularly applicable to the situation in hand. This was a closed car, locked and sealed. It was a car belonging to another railroad. The load was of heavy material in square boxes “laid flat ” upon the bottom of the car and distributed evenly over the car at an average height of not more than three and one-half feet. To have required this defendant under the circumstances to break the seal, open this car and inspect the load would have been an absolute repudiation of the law as it has been established. And to require this railroad and all other railroads in the future to open such cars and all other closed cars and inspect the loads at every station where they may stop long enough to be inspected would be to establish a rule burdensome, oppressive, unreasonable — almost impossible.

The doctrine *res ipsa loquitur*should have been applied to the circumstances disclosed at the trial. Every element for the correct application of that rule was presented. The relation of the parties never determines whether the rule is applicable. The underlying principle of the rule ignores the relation of the parties. *(Griffen*v. *Manice,*166 N. Y. 188.) It *189has been said that the rule should be applied with caution, but I see no reason to observe caution in applying it. After the rule is found to fit the facts, caution avails nothing; it certainly should not be permitted to become an obstacle in the way of justice. If the rule is applicable to the situation it should be invoked without caution and without hesitation. It is, of course, well to be careful in determining whether this rule of evidence is applicable to the facts proven; in fact, it is always well to be careful, but there is no occasion for greater care here than in determining any other question of law. The only reason to hesitate in the case before us is because the car from which the door fell did not belong to the defendant. But as soon as the car came upon the defendant’s road the defendant assumed absolute control over it and, as to those defects which could be discovered by inspection, it owed to the deceased and to all other persons exactly the same measure of care in operating and moving it as if the car had been the property of the defendant. *(Goodrich*v. *N. Y. C. & H. R. R. R. Co.,*116 N. Y. 398; *Gottlieb v. N. Y., L. E. & W. R. R. Co.,*100 id. 462.) So far as this accident goes, therefore, the Lehigh Valley car became the defendant’s car.

It is unnecessary here to reason about the *res ipsa loquitur*doctrine; it has been defined and reasoned upon many times by the highest courts and has become fixed as a rule of circumstantial evidence. The Court of Appeals in *Breen*v. *N. Y. C. & H. R. R. R. Co.*(109 N. Y. 297) defines the rule as follows: *“*There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” This Lehigh Valley car, the one in question, was under the control of the defendant; doors, such as the one on this car, do not ordinarily fall off when reasonable care is used in securing them; the socket, a part of the locking device of the door, was gone so that the door could not be locked; the wood looked weather-beaten in the place where the socket had been; the staple holding the chain which held the pin for the hasp *190(another device for fastening the door) was gone; the seal for some reason had once been found missing. These established circumstances were not direct proof of negligence, but they raised a presumption of negligence against the defendant, and, therefore, at the close of the evidence it was for the jury to determine whether this presumption had been overcome by the evidence introduced by the defendant.

It follows that the motion for a nonsuit was properly denied and that the order setting aside the verdict was properly made. Both orders should be affirmed and a new trial granted.

Smith, P. J., concurred; Kellogg, J., concurred in memorandum, in which Lyon, J., concurred; Woodward, J., concurred in memorandum.

Kellogg, J. (concurring):

The fall of the door without any apparent cause is some evidence that it was not properly secured. When the defendant received this foreign-loaded car upon its road, the only duty it owed was a proper inspection to see that it was in suitable condition for service. It would naturally seem that a proper inspection would have disclosed the fact that the door was not properly secured, or was so constructed that in its ordinary use it might fall from the car. There is evidence of an inspection, but the fall of the door unaccounted for is some evidence that there could not have been a proper inspection. The questions are: Was the door properly secured; if not, would a reasonable inspection have disclosed the fact; was there such an inspection ?

Lyon, J., concurred.

Woodward, J. (concurring):

I concur with Mr. Justice Howard.

The only tenable theory of the case was not submitted to the jury. The accident, which was one which does not occur under ordinary circumstances, was due wholly to operations under the control of the defendant, and the simple statement of the facts, supported by evidence, was sufficient to send the case to the jury, after the defendant had had an opportunity to present an explanation, but' the case, from the drawing of *191the pleadings to the final submission, appears to have been conducted without any clear idea of the result to be accomplished, and it has resulted in a situation which can only be met by sending the case back for a new trial. If the accident resulted from the manner of the loading, the defendant was not liable. If, on the other hand, as the evidence in the case tended to show, the accident resulted from defects in the car door or its fastenings, which a reasonable and proper inspection should have disclosed to the defendant, the doctrine of res *ipsa loquitur*would apply, and it would call upon the defendant for explanation, and this explanation with the attendant circumstances would be proper matter for the jury to consider.

For these reasons concurrence in the affirmance of the order seems to be necessary.

Order affirmed, without costs.