#### Alice M. Curtis, as Administratrix, etc., of Arthur M. Curtis, Deceased, Respondent, *v.*The New York, New Haven and Hartford Railroad Company, Appellant.

First Department,

December 31, 1913.

Railroad — negligence — death, of locomotive engineer, caused by derailment of train in taking switch at excessive speed — evidence — res ipsa loquitur.

Where, in an action to recover for the death of a locomotive engineer, employed by the defendant, it appeared that the intestate ran a passenger train over a switch of the interlocking type at a speed of between fifty and sixty miles an hour, although the switch was designed to be taken with the train running not to exceed fifteen miles an hour; that the engine and some of the cars were derailed, and the intestate killed, and that the testimony of the towerman and another witness that the signals were properly set was uneontradieted, the defendant cannot be held liable on the theory that the signals were not properly set.

As the accident was due to the negligence of one of two servants of the defendant, either the engineer or the towerman, the rule of *res ipsa loquitur*does not apply.

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of New York on the 24th day of May, 1913, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 26th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.

*John M.*Gibbons, for the appellant.

*Ralph G. Barclay,*for the respondent.

McLaughlin, J.:

There is but little dispute between the parties as to the material facts involved in this action. The plaintiff’s intestate was employed by the defendant as a locomotive engineer. On the morning of July 11, 1911, he started with a passenger train, known as the Federal Express, from New York for Boston. There were four tracks on defendant’s road, desig*758nated 1, 2, 3 and 4— 1 and 3 for west-bound trains, and 2 and 4 for east-bound. When the Federal Express left New York it was on track 2. Attached to it was a car of the United States Fishery Commission, which the conductor was ordered to leave at Bridgeport, Conn. He communicated this order in the usual way to the intestate before the train left New York. In order to leave the car at the place designated it was necessary for the train to pass from track 2 to track 4, and' the last crossover which could be taken for this purpose, without running by and backing in, was at Burr road, a point near Bridgeport. A considerable time before the train reached Burr road the train dispatcher at New Haven informed the towerman (the person who had charge of the switches at Burr road) that the Federal Express at that point was to cross from track 2 to track 4. This crossover was what was termed a low-speed, that is, it was designed to be taken when the train was running not to exceed fifteen miles an hour. The switch was of the interlocking type and could not be thrown unless prior thereto the danger signals had been set. These signals were three in number, the “ distance,” “home ” and “ dwarf.” The distance signal was located about 2,200 feet, and the other about 200 feet west of the switch. The train reached the switch between four and five o’clock in the morning, and took the same while running at the rate of between fifty and sixty miles an hour., The engine and some or all of the cars were derailed and the intestate killed. The plaintiff brought this action to recover on the ground that his death was caused by the negligence of the defendant. She had a verdict of $6,000, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

I am of the opinion the judgment must be reversed. The only theory suggested as the cause of the accident, upon which defendant could be held responsible, is that the signals were not set in time to notify the intestate to slow down in order to take the crossover at'the point where the train was derailed, and there is no evidence whatever to sustain this theory; on the contrary, the only possible inference, as it seems to me, that can be drawn from all the evidence, is that the decedent lost his life by reason of his own negligence. The switch and signals con*759nected with it were, as said, of the interlocking type, the highest and most efficient type known. They had been inspected prior to the accident and worked properly. The switch could not be turned unless the signals were set, and the towerman testified that he set the signals upwards of twenty minutes before the wreck occurred; that he received orders to turn the switch some twelve minutes before the accident, and he could not have turned it if the signals had not been set. The witness Boyd, who was on the rear car of the Federal Express, testified that immediately following the wreck the “home ” signal was then “ Bed” and the “distance” signal at “Yellow,” the colors they were intended to be when the switch was to be taken. The witness Stone also testified that a little later he saw the same, thing. The towerman, therefore, was corroborated as to the setting of the signals, and the testimony of none of these witnesses was contradicted.

A wrecking train was sent from New York after the accident and there was some testimony to the effect that when it arrived, some three hours later, sand was observed upon the track some twenty feet west of the switch, from which it is claimed the jury might have found that the signals were not set in time to warn the decedent, and that he attempted to stop his train when he saw the switch was turned. This inference is not justifiable. It can no more be inferred that the signals were not set than it can that they were, and the intestate did not see them. The inference is just as strong one way as the other; in other words, if it be assumed that the accident was due either to the negligence of the engineer or the towerman, there is no presumption that it was the latter instead of the former. But even if it were proper to indulge in such inference, it would not justify the recovery, because the weight of the evidence clearly and conclusively established that the "accident was not due to the negligence of the towerman. This seems to have been the view of the trial judge at the close of the case, when, in denying a motion for a new trial, he stated he did not think the result of the accident was due to the culpability of the towerman; that this was not the theory upon which the case was submitted to the jury; on the contrary, “it was a general •situation represented by the doctrine of *res ipsa*loquitur.” *760The case was tried and submitted to the jury upon that theory; in other words, all that the plaintiff was required to prove to make a *prima facie*case was the occurrence of the accident, the death of her intestate by reason thereof, and then it was for the defendant to prove, if it could, its freedom from negligence. The rule did not apply. The accident was due to the negligence of one of two servants, of the defendant — the engineer or the towerman — and this rule has no application in determining upon which one the responsibility rested. *Res ipsa loquitur*applies only to cases where, from the nature of the accident itself, it is of such a character that it would not ordinarily have occurred except for some negligent act for which defendant is responsible. When such an accident occurs then the jury may infer negligence,, not from the accident alone, but from it and the attending circumstances. *(Cunningham*v. *Dady,*191 N. Y. 152; *Griffen*v. *Manice,*166 id. 188; *Benedick*v. *Potts,*88 Md. 52.) Where the rule applies the presumption only establishes a *prima facie*case in favor of the plaintiff and the defendant is then charged with the obligation of meeting such a case. *(Loudoun*v. *Eighth Ave. R. R. Co.,*162 N. Y. 380; *Lane*v. *New York Contracting Co.,*125. App. Div. 808.) It would apply if plaintiff were suing for the death of a passenger on the train, because ordinarily such a wreck is caused by the negligence of the engineer or some person in charge of the tracks or cars, for which defendant would be responsible.

*Van Inwegen*v. *Erie R. R. Co.*(126 App. Div. 297; affd., 194 N. Y. 534), cited by respondent, is not in point, nor is it in conflict with the view above expressed. There the engine passed from one track to another over an open switch which was intended, and thought, to be closed. It was an unexpected movement of the train and the person killed had no more to do with it than would a passenger. Here the movement of the train was not unexpected. The turning of the switch was the usual and necessary thing to do in order to permit the train to pass from track 2 to track 4, and the engineer had been advised that this change would have to be made in order to leave a car at Bridgeport.

But if it be assumed that the doctrine of *res ipsa loquitur .*
      *761did apply, then the judgment could not- be sustained because defendant’s uncontradicted evidence is sufficient to rebut any possible inference of negligence. The verdict to the contrary is against the weight of evidence.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.