#### Alois Endres, Respondent, *v.*International Railway Company, Appellant.

Fourth Department,

January 6, 1909.

Railroad — negligence — injury to passenger by electric shock — degree of care required.

Action to recover for loss of services of plaintiff's wife occasioned by personal injuries. Evidence and rulings on evidence examined and *held,*that a new . trial should be granted.

*Qumre,*as to whether the motorman on an electric car in operating the controller is under the duty of using the highest degree of care, or merely ordinary care.

Appeal by the defendant, the International Railway Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 3d day of March, 1908, upon the verdict of a jury for $575, and also from an order entered in said clerk’s office on the 6tli day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Norton, *Penney & Sears*and *Dana L. Spring,*for the appellant.

*Marie P.*Kerr, for the respondent.

Williams, J.:

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

The action was brought to recover for loss of services of plaintiff’s wife, who was alleged to have received personal injuries through the negligence of the defendant. She was a passenger riding in one of the defendant’s cars. There was an electrical disturbance in the car, and it is claimed she received a shock which led to the very serious consequences detailed in the evidence.

*First.*The defendant claims that there was no evidence upon which its negligence could be found. The accident occurred August 12, 1904. The plaintiff gave evidence as to what happened at the time of the accident, but did not attempt to show what the cause of the difficulty was or how the defendant was negligent in respect to the *786electrical appliances in the car. He relied upon the rule of *res ipsa loquitur.*(Adams v. *Union Railway*Co., 80 App. Div. 136.)

By the evidence given on the part of the defendant it appeared that the car was brought into the car barn towards evening of the day before the accident, August eleventh, it being reported that the controller worked hard. The electrical repair man opened the controller box and examined the parts, and found the contacts dry. These are the parts that come together when the handle is turned around and through which the electricity passes. He blew the dust out and put some grease in to make it easy, and found no other trouble. He reported the car then as all right, and it was run by one motorman from seven-forty-five the same evening until half-past twelve o’clock, when he put it in the barn. He testified the electrical appliances were all right during that time. It was sent out again on the morning of August twelfth, about five o’clock, and was operated by a second motorman from that time until about half-past eleven o’clock in the forenoon, and that motorman testified the car was all right during that time and when he turned it over to the motorman who was operating it at the time of the accident. This third motorman was not a witness. He was dead at the time of the trial. The conductor was sworn. He took the car with the third motorman referred to, and was on the car until the accident occurred, about two o’clock in the afternoon. The conductor testified it operated all right until the time of the accident. All these witnesses testified that nothing occurred while they were on the car to injure the controller, as far as they knew. The car was taken to the shop after the accident and the repair man examined the controller then and testified that he found two of the fingers bent, that a set screw had worked loose and had caused the trouble. He said he found this screw a little loose the night before, and tightened it up. Two electrical experts, Douglas and Potter, examined the car after the accident (before it had been interfered with, as the master mechanic swore), and they testified that the car was all right except that the two fingers were bent and out of adjustment and were burned and blistered, which came from the loosening of the screw and that the standard way of fastening the fingers was by the use of screws. The defendant, in short, claims that the accident was caused by a blowout e£ the eontroller resulting from the loosening *787of the screw and bending of the fingers, so called, while the car was being operated, and that the defendant was not negligent in failing to discover the loosening of the screw and the bending of the fingers caused thereby, before the accident, and repairing them.

The plaintiff claims, however, that the defective condition causing the accident might, by the exercise of proper care and inspection, have been discovered and remedied and the accident thus prevented, and that there may have been negligence on the part of the motorman in the use of the power, which injured the controller fingers and thus caused the accident.

Upon all the evidence we are inclined to the view that the question of defendant’s negligence was for the jury and not for the court. The jury were not bound to believe all that was sworn to by defendant’s witnesses, who were mostly its employees, nor to adopt the opinions expressed by defendant’s experts. There were circumstances developed by the cross-examination of the witnesses, and by evidence given in plaintiff’s behalf, which the jury were entitled to consider, and from all the evidence they were to determine whether the defendant had performed its full duty to its passengers at the time of the accident, so as to relieve it from liability for injuries resulting therefrom, notwithstanding the rule of *res ipsa loquitur,*and the defendant’s attempt to remove the presumption arising therefrom. *(Eaton*v. *N. Y. C. & H. R. R. R. Co.,*125 App. Div. 54.)

*Second.*The defendant claimed that there was no evidence, or at least insufficient evidence, to authorize the finding by the jury that the plaintiff’s wife received an electrical shock, and was thereby injured as seriously as plaintiff’s evidence would seem to indicate. She, herself, testified to the feelings she experienced at the time, and to her condition immediately after the accident, which grew worse as the time passed.

There was more or less evidence given by electrical experts as to the possibility of her receiving a shock, considering the condition of the electrical appliances in the car at the time of the accident. There seems no doubt that the woman, from the time of the accident on was in a serious condition and has continually grown worse. The only question seemed to be whether this condition resulted from a shock received at the time of the accident, or from *788other physical infirmities to which women are subject, at the time of the change of life, as it is commonly termed. Physicians as experts were examined at considerable length upon this subject, and then the question was left to the jury, and we think properly so. We can hardly say their verdict was without evidence to support it, nor can we say it.was contrary to or against the weight of the evidence so as to require it to be set aside either as matter of law or of fact. As before stated, the woman’s physical condition from about the time of the accident on until this trial was shown tó be very bad, and this by many witnesses. As to the time when this began, and the apparent exciting cause, the woman testified in great detail as to her feelings on the car when the flashes of the blowout occurred, and on her way to the hospital, and then to her home, and she was corroborated as to her condition at that time by other witnesses. They could not of course say what her feelings were. If her evidence was wholly reliable the jury might well find that she received an electrical shock at the time of the accident, which was the cause of all her subsequent physical troubles. *(Buckbee*v. *Third Avenue R. R. Co.,*64 App. Div. 360.)

Whether that evidence and its corroborations were overcome by the expert evidence, electrical and medical, must be regarded as a question of fact, which the plaintiff had a right to submit to the jury, and we should not disturb their finding on that question.

*Third.*The defendant contends that the court erroneously instructed the jury that it was chargeable with the highest degree of care that could be expected of human beings in the handling and running of the car by the motorman. The claim is that the motorman was required to use only such skill and care as an ordinarilj prudent and careful man would use. *Stierle*v. *Union Railway Co.*(156 N. Y. 70, 684) was a street; railway case, the car being drawn by horses, and it was held *not*that the strict rule as to the highest degree of care was inapplicable in all street railway cases, but that it was inapplicable to that case under the circumstances surrounding the accident therein. The rule as stated in that case was that the duty of the highest degree of care applied only in regard to those results which were naturally to be apprehended from unsafe roadbeds, defective machinery, imperfect cars and other conditions endangering the gu@@@ss of the undertaking, and the court *789said that the conditions there present were not such that dangerous results could be apprehended, and, therefore, the driver had the duty of ordinary care only. (See opinion in reargument, p. 684 *(supra),*and the cases there referred to.)

The rule of the highest degree of care is usually applied in cases where the accident results from defective roadbed, machinery and cars, and rarely in cases where the result follows negligent operation by the driver, engineer or motorman. Incases where the negligence of the operator of the motive power is involved, evidently the rule in the *Stierle*case should control, and whether the care should be the highest degree or only ordinary care would be dependent upon the question whether from the particular acts charged as negligent, under the circumstances present at the time, serious and dangerous, results were liable naturally to occur.

Evidence had been given by plaintiff’s expert, Billings, upon which the jury might find the blowout was caused by the operation of the power while the car was running; that if there was a little trouble with the fingers the motorman could discover it, and might make it worse by the use of too much force, or he might stop the car and cut out the motor that was wrong and thus save trouble. The motorman was not a witness, was dead at the time of the trial, as already stated. Whether he was negligent in the respects suggested above was left to the jury, among other grounds of negligence, and under the instruction that he was bound to the exercise of the highest degree of care which could be expected of human beings.

The question is, therefore, whether these alleged acts of negligence under the circumstances were such that serious, dangerous results were liable naturally to occur.

It may be said that a blowout of the controller was liable to result, but ordinarily would such a blowout cause serious trouble ? Were such serious results as ai'e claimed to have occurred here reasonably to be apprehended ? We think not, and that the rule of ordinary care alone was applicable to the motorman in operating the car in the respects suggested. This question is not free from doubt. There are no authorities directly in point.

The facts in this case already considered are close also, and the right of plaintiff to recover at all troublesome, and it seems to us this particular instruction to the jury placed upon the defendant a *790burden which it should not have borne, especially as the mo tor man could not be produced as a witness, and the principle of *res ijpsa loquitur*was applied in the case.

*Fourth.*The rulings by the court in the admission of evidence given by Dr. Schwartz and the expert witness Wende were questionable, at least, if not clearly erroneous, but were it not for the closeness of the other questions in the case we might overlook them.

We think there had better be a reversal, upon the law and the facts, and a new trial granted.

McLennan, P. J., concurred; Kruse and Robson, JJ., concurred in result in separate memorandum by Kruse, J.; Spring, J., not sitting,

Kruse, J. (concurring):

I concur in the result upon the ground that improper testimony was admitted. The statements of the plaintiff’s witness that it was possible for a person riding in a car to get an electric shock, and that the witness himself had received such a shock, should have been excluded. While ordinarily this might not constitute prejudicial error, the case was so close upon the evidence that I think the error cannot be disregarded.

I think it very doubtful that the plaintiff was injured, physically, by an electric shock. Her health was not good and very likely she became frightened, which may have aggravated her illness. But that of itself is not a ground for liability against the railway company.

I do not, however, agree with the views of Mr. Justice Williams that the defendant was not required to use the highest degree of care in respect of its appliances for applying and using the electric power. Electricity is a force so dangerous, and the improper use of it liable to result in so serious and grave consequences, that I think the rule of the highest degree of care applies. *(Leonard*v. *Brooklyn Heights R. R. Co.,*57 App. Div. 125.)

Robson, J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.