The plaintiff, a passenger in one of defendant's street cars, was injured by a motor truck, going in the opposite direction, colliding with the side of the car. The truck was not owned or in any way controlled by the defendant. The trial court, after referring to the collision, instructed the jury, to which an exception was taken, as follows: "When such a collision takes place there arises as a rule of evidence a presumption of negligence on the part of the carrier which calls upon it for an explanation. I do not mean in making this statement that this rule of evidence shifts the burden of proof from the shoulders of the plaintiff *Page 291 on to the shoulders of the defendant, but merely that the company from the fact of the collision, if you find there was a collision, is called upon to make an explanation."
I am of the opinion that the instruction did not correctly state the rule of law applicable to the case, and that the exception necessitates a reversal of the judgment and a new trial.
The charge is sought to be justified by the decision of this court in Loudoun v. Eighth Ave. R.R. Co. (162 N.Y. 380). That case, as I read the opinion, is clearly distinguishable from the present one. There, the Eighth Avenue Railroad Company's cars crossed the tracks of the Third Avenue Railroad Company at right angles. The plaintiff was a passenger in a car of the former and was injured by its colliding at the crossing with a car of the latter. The court held that the doctrine of res ipsa loquitur applied to the Eighth Avenue Company, but not to the Third Avenue Company; that the collision having occurred at the crossing, there arose a presumption of negligence on the part of the carrier which called upon it for an explanation. The presumption in that case arose by reason of the duty of the carrier to its passenger to exercise the highest degree of care to avoid a collision at that point; that it knew of the crossing and if the car in which the passenger was riding reached that place at the same time the car of the Third Avenue railroad did, a collision would necessarily occur; that the collision having there taken place, the carrier was bound to give some explanation of it, and that unless a sufficient explanation were given, a presumption of negligence arose against the carrier.
It is true there are expressions in the opinion which would make the rule there stated apply to trackless vehicles not only at crossings but moving anywhere in the street. No question of that kind however, was presented or involved in the decision. Therefore, what was said on *Page 292 that subject is not binding upon the court. It has been well said that "a judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance." (Colonial City T.Co. v. Kingston City R.R. Co., 154 N.Y. 493, 495.) Legal principles are not established or rules laid down by what is said in a judicial opinion; that is only done by the decision made. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N.Y. 417,447).
That the exception to the portion of the charge quoted was well taken seems to me to follow from our decision in Alexander v.Rochester C. B.R.R. Co. (128 N.Y. 13). There, the plaintiff, a passenger, was injured while riding in one of the defendant's street cars by a wagon loaded with lumber moving in the opposite direction colliding with the side of the car. It was there held that the mere fact of the collision did not of itself establish negligence on the part of the defendant or raise a presumption of negligence on its part which called upon it for an explanation. Judge GRAY, who delivered the opinion, in which the other members of the court concurred, said "As the case stood upon the evidence, no inference was permissible that the defendant had failed in its obligation to carry the plaintiff with that care and vigilance, which are imposed by law upon such a carrier of passengers. * * *." (p. 18.)
This authority was followed and applied in Grant v.Metropolitan St. Ry. Co. (99 App. Div. 422). In that case the plaintiff was a passenger in one of defendant's street cars. She was injured by a horse colliding with it. It was held that the mere fact of the collision between the car and the horse was not of itself sufficient to justify the application of the maxim resipsa loquitur.
The same view has been expressed in other jurisdictions. (Stangy v. Boston Elevated Railway Co., 220 Mass. 414; Blew v. Phila. Rapid Transit Co., 227 Penn. St. 319; Chicago CityRy. Co. v. Rood, 163 Ill. 477; Fagan v. Rhode *Page 293 Island Company, 27 R.I. 51; Hawkins v. Front St. Cable Ry.Co., 3 Wn. 592. See, also, Paterson v. Phila. Rap. TransitCo., 218 Penn. St. 359; Kurts v. Phila. Rapid Transit Co., 244 Penn. St. 179; Coffey v. Sampsell, 174 Ill. App. 576; Halsbury's Laws of England, vol. 21, pp. 439-441.)
The maxim res ipsa loquitur — the thing speaks for itself — is applied 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, would not have happened if reasonable care had been used, then it, in the absence of explanation by defendant, affords sufficient evidence that the accident arose from a lack of care on his part. (Breen v.N.Y.C. H.R.R.R. Co., 109 N.Y. 297.)
The collision was caused by the driver of the motor truck, when nearly opposite the car in which the plaintiff was riding, suddenly changing his course and attempting to pass another vehicle moving in the same direction. In doing this, the truck ran into the side of the car. The accident could not have been anticipated by the defendant's motorman, and there is nothing which he could have reasonably done which would have avoided it. It was due to the careless and reckless act of the driver of the truck. To say under such circumstances that the maxim res ipsaloquitur applies is in effect to make the defendant an insurer of the safety of its passengers. (Piper v. N.Y.C. H.R.R.R.Co., 156 N.Y. 224.)
I am of the opinion that the judgment appealed from should be reversed and a new trial granted, costs to the appellant to abide the event.
HOGAN, CARDOZO, CRANE and ANDREWS, JJ., concur with POUND, J.; McLAUGHLIN, J., reads dissenting opinion; HISCOCK, Ch. J., not voting.
Judgment affirmed. *Page 294