On the 28tli of January, 1895, the plaintiff, a passenger in one of the defendant’s cars, was seriously injured by the car in which she was riding colliding with another car on the same track, and she brought this action to recover damages upon the ground that her injuries were caused solely by the negligence of the defendant. She had a verdict of §6,000, and from the judgment entered thereon the defendant has appealed.
*474In submitting the case to the jury the learned trial justice said i “ If it ” (referring to the accident) “ can be attributed to the want, of reasonable care on the part of the defendant corporation, then your verdict must be for the plaintiff. 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, lias the defendant met that burden? That is a question of fact for you to determine.” An exception was taken to this portion of the charge by the defendant, and I am of the opinion that the exception was well taken. (Jones v. Union Railway Company, 18 App. Div. 267, 272.) The plaintiff had the burden of proving the defendant’s negligence, and the accident, no matter what the circumstances were connected with it, did not shift this burden, as charged by the court, from the plaintiff to the defendant. In actions to recover damages for personal injuries on the ground of negligence before the plaintiff is entitled to recover he must give proof of some specific act of negligence on the part of the defendant, unless the accident is of such an unusual character, as here, that it may be said to speak for itself, and in such cases he may stop with proof of the accident. But this does not shift the burden of proof. That never ■ shifts; it always remains with .the one who asserts. The error into which the learned justice fell was in confusing the right of the plaintiff to stop with the proof of the accident, thus forcing upon the defendant the burden of giving further evidence within the principle alluded to, which placed upon the plaintiff the burden of proving what she liad alleged in her complaint.
But it is said that the error thus committed could not have injured the defendant because it was thereafter cured by the learned trial justice’s charging defendant’s fourteenth request. I do not agree with this statement. The only way in which an erroneous instruction can be cured is by withdrawing it in language so plain and explicit as to preclude even an inference that the jury may have been influenced by it. (Phillips v. New York Central & Hudson River R. R. Co., 127 N. Y. 657.) In charging the defendant’s fourteenth request the learned trial justice did not withdraw from *475the jury anything that he had theretofore said, and what took place precludes, as it seems to me, any such inference. After the court had charged the jury in the manner above indicated, and had declined to charge defendant’s third, thirteenth and fourteenth requests as follows: “ (Third) The mere fact of the accident, and that the plaintiff was thereby injured, is insufficient to sustain the plaintiff’s alleged cause of action. She must prove that her injury was the result of some negligence on the part of the defendant.” “ (Thirteenth) 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 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.” “ (Fourteenth): 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 ” — and the defendant had taken an exception to the charge as made, and to each of the refusals to charge as requested, the plaintiff’s counsel said to the court: “ I don’t want any trouble above and, therefore, I am willing that your honor should charge the fourteenth request of the defendant,” and the court then read to the jury the fourteenth request. Can it be said that this withdrew the erroneous instructions theretofore given ? I think not. The learned trial justice did not even indicate to the jury that they were not to be bound by and to follow the instructions previously given.
The case was sent to the jury under an erroneous statement of the law governing the rights of the parties on the issue involved, and-that the defendant was prejudiced by it is evidenced by the verdict rendered.
I am unable, therefore, to concur in the opinion of Mr. Justice O’Brien- for the affirmance of this judgment. I think it should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.