#### Lawrence W. H. Vogel, Appellant, *v.*Henry D. Bahr, Defendant, Impleaded with Union Railway Company of New York City, Respondent.

First Department,

March 5, 1909.

Railroad — negligence — collision — injury to passenger. — res. ipsa , loquitur — evidence — presumption.

Where a passenger who was injured by a collision between the car in which he was riding and a truck shows that the car was proceeding rapidly at the time, and that its speed was not checked until after the collision, the fact of the accident is enough, in the absence of explanation, to warrant an inference that the driver of the car was negligent.

*733No question having been made on the trial as to the passenger’s right to stand on the rear platform, and the railroad company having successfully objected to questions the answers to which might have shown that the plaintiff was there at the conductor’s direction or by his consent, it will be assumed on appeal that the plaintiff was rightfully on the platform.

Appeal by the plaintiff, Lawrence W: H. Vogel, from a judgment of the Supreme Court in favor of the defendant, the Union Railway Company of Hew York City, entered in the office of the clerk of the county of Hew York on the 17th day of May, 1907, upon the dismissal of the complaint by direction óf the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 26tli day of April, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

*J. Arthur*Hilton, for the appellant.

*Bayard H.*Ames, for the respondent.

Scott, J.:

Plaintiff appeals from a judgment dismissing his complaint as against the defendant Union Railway Company, and from an order denying a motion for a new trial.

The plaintiff was a passenger on one of the defendant’s electric cars. The route of the car was easterly through One Hundred and Thirty-fifth street to Madison avenue, there turning north and proceeding along said avenue. The plaintiff was standing on the rear platform. Ho question was made» as to his right to stand there, and as the defendant successfully objected to certain questions the answers to which might have shown that plaintiff stood on the platform at the conductor’s direction or by his consent, we must assume that plaintiff was rightfully upon the platform. Just before the car turned into Madison avenue it slackened its speed until it was nearly ata standstill. It then quickened its speed and swung around the corner at a high rate of speed. When it reached the northeast corner of Madison avenue and One Hundred and Thirty-fifth street it collided with a two-horse truck which was proceeding westerly along One Hundred and Thirty-fifth street. There is no evidence from which it can be determined, as between the car and the truck, which was to blame for the collision. The plaintiff could not see from his position and no evidence was introduced in behalf of either defendant. The pole *734of the truck struck the car somewhere near the front, and scraped along the side until it reached the rear platform, when it struck the plaintiff, producing the injuries for which he sues. The case thus presented against the railway company is very similar to that presented in *Hill*v. *Ninth Ave. R. R. Co.*(109 N. Y. 239), wherein a passenger was injured by the pole of a truck which penetrated through the front panel of the car and injured her. In that cage, as in this, the plaintiff was unable to state precisely how the .accident occurred, or to apportion the blame as between the car and the truck. It was considered, however, that the mere fact of the accident, in view of the circumstances, also present in this case, that the car was proceeding rapidly, and that its speed was not checked until after the collision, was enough to call upon the railway company for an explanation, and in its absence to warrant an inference that the driver was in some manner negligent. The samé reasoning applies to the present case and requires a reversal of the judgment and order appealed from and a new trial, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

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