The circumstances attendant upon the accident out of which this action grows were of so unusual a character as to bring them within that maxim of the law which declares that negligence is imputable from the mere happening of the accident itself. The plaintiff, a passenger in one of the defendant’s cars, was entitled to that protection which a carrier of passengers is bound to afford, not only in the management of the vehicle, but in the care of the- tracks and appurtenances of the railroad. The accident out of which the plaintiff’s injuries arose took place at a terminal point of the road, upon a descending grade, at the foot of which was another car being shifted from one track to another. The car in which the plaintiff was a passenger collided with it, causing the injuries to the plaintiff for which she seeks to recover damages. It was shown in evidence that it was a stormy day, and that the ground and track were covered with snow, to what extent being in dispute. But such an occurrence at such a point in the road was regarded and was in and of itself of such a character as to justify the inference of negligence, without any further proof than that of the situation and the occurrence itself. Upon that state of the case the court, on a motion for a nonsuit, ruled that the circumstances disclosed by the testimony were such as to place upon the defendant the burden of showing that the collision was not due to any want of care on the part of its servants, and in charging the jury remarked that “ the law imposes upon the defendant, where an accident happens under the circumstances disclosed by the testimony in this case, the burden of showing to the jury such facts as warrant the jury in concluding that the defendant corporation exercised due care in the construction of its road, in the management of its cars and horses, to prevent accidents. Now, has the defendant met that burden ? That is a question of fact for you to determine.”
The exceptions relied upon to reverse the judgment relate to the instructions of the judge respecting the burden of proof, the contention being that error was committed in giving such instructions, and that they were tantamount to holding that the burden of proof was upon the defendant to establish a negative, viz., that its servants were not negligent, whereas the rule of law is that the burden of proof is upon the plaintiff from beginning to end of a case to *468establish the affirmative of the issue tendered. Upon an examination of the record it is to be noticed that the main charge of the judge was very clear and entirely correct upon the proposition of law applicable to the burden of proof, unless it may be there was error in what we have indicated. The jury were instructed that, on the state of facts mentioned, “ the collision here was under such circumstances as to create a presumption of negligence.” The judge also said that .the plaintiff’s case “ was made out when she proved the injury and proved the collision, for the reason that it happened under circumstances that raised a presumption of negligence.” He then, upon the defendant’s request numbered the second, charged as follows: “ The burden of proof in this action rests on the plaintiff, and she is bound to prove by a preponderance of evidence the existence of negligence on the part of the defendant, and that such negligence of the defendant was the proximate cause of her injury. The mere fact that a person is injured while riding in a railroad car does not impose upon the company the burden of disproving negligence.” He also charged as follows upon the defendant’s fourteenth request: “ In other words, the jury must be able to find from all the evidence in the case that something was done by the defendant which ought not to have been done, or that the defendant omitted to do something which it ought to have done to have prevented the accident, otherwise the plaintiff is not entitled to recover.” It was insisted, however, by the defendant that it was entitled to a specific instruction in these words (thirteenth request): “ Therefore, unless the jury are able to find affirmatively from all the evidence in the case that there was some negligence on the part of the defendant, either in the management of its car in which the plaintiff was riding, or in the effort exercised on the part of the defendant by sanding its tracks in the manner described, to avoid the danger of such an accident, the plaintiff cannot recover and the defendant is entitled to a verdict.” This last request was declined, “ otherwise than as already charged” upon the subject-matter thereof.
That request is to be taken as an entirety, and the court was justified in refusing to charge it as a whole for it was not sufficient to exculpate the defendant if it merely made the effort to render its tracks safe by using sand on the occasion on which the accident occurred. A particular method is pointed out in that request, and *469it must be taken in connection with the remainder of the request; and, looked at as a whole, the judge was right in refusing it because it failed to exclude evei’y act or omission upon which the defendant's negligence on the occasion complained of could be predicated.
But there remains behind all this the other question as to the correctness of the presentation of the case to the jury on the subject of the burden of proof. It is impossible that the jury could have been misled by anything said by the court on that subject; for, taking the main charge in connection with the two requests quoted, which were charged, it is obvious that the jury were told that the burden of proof in the case to establish a liability of the defendant was with the plaintiff from the first to the last. There has been much academic discussion of a very profitless character upon the use of the words “ burden of proof; ” but that discussion is entirely extraneous to the present case. What is the real rule of law concerning the giving of proof, where the presumption of negligence arises, as it did here ? The plaintiff may rest upon his proof; and, if nothing further is shown, the jury are authorized therefrom to act upon the presumption and assess damages. Of course, the credibility of witnesses is with the jury. But if the defendant enters ujion proof-concerning the facts of the occurrence, to what is that proof addressed ? Either to a refutal of the plaintiff’s version, or to the establishment of facts which would avoid liability or explain the case as made by the plaintiff. That is all that is meant by the phrase “ burden of proof ” as used here — a phrase which is employed and has been used from time immemorial, by every judge, to indicate how the carriage of a case passes from one side to the other. That very expression “ burden ” of proof was used in the leading case in this State upon the subject of accidents that “speak for themselves,” as indicating negligence of the defendant. In Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 227) the Court of Appeals considered the relation of proof in a case of precisely this character, where it appeared that a train left the track. The court held that that circumstance proved that either the track or the machinery, or some part of it, was not in a proper condition, or that the machinery was not properly operated, and that the defendant owed to its passengers the same duty to keep its tracks as safe at one place as at another. The opinion proceeds: “ The court further charged that the defend*470ant was bound to show and give some explanation of the cause of' the accident. That £ the bv/rden ’ is upon them to show that they exercised the prudence and skill in the preparation of their track and their cars, and in the management of them, demanded by the-law. Unless they prove themselves free from negligence they are-liable. The defendant’s counsel excepted to this portion of the charge. This portion of the charge must be understood in reference to the facts of this case, and as applied to such facts. In this view it was not erroneous. * * * The charge, in substance, was that, the defendant must, by proof, answer and rebut this prima facie; case against it, and show itself free from the negligence to be presumed from the facts proved by the plaintiff, or it was liable.”' That was held in an unanimous decision of the Court of Appeals,, and has never been questioned. The same expression of the rule was-made in Volkmar v. Manhattan R. Co. (134 N. Y. 422), a case in which the principle res ipsa loquitur was held to apply. There it. is said the plaintiff “ had established a prima facie case when he-rested. The bv/rden was then on the defendant.” In the light of those decisions it is .plain that there was nothing in the charge of the court in the case at bar which laid down a rule in any way departing, from a correct statement of what the obligation of the defendant was, with reference to proof, if it desired to relieve itself from the effect of the presumption which the jury were entitled to draw upon the plaintiff’s showing.
The general structure of the charge to the jury in this case properly presented the duty of the plaintiff with respect to the establishment of her cause of action. It is hypercritical to select from that charge one or two phrases or sentences and separate them from their context for the purpose of predicating thereupon an erroneous presentation of the law, especially in view of the fact that, tested by the ruling announced in the leading case cited, even those phrases- and sentences were not misapplied or misused.
As the exceptions to the charge were the only ones argued and relied upon, and as we find no error therein calling for a reversal of this judgment, it and the order denying a motion for a new trial should be affirmed, with costs.
Patterson and Ingraham, JJ., concurred; Van Brunt, P. J.,. and McLaughlin, J., dissented.