(dissenting):
I do not concur in the result reached by my learned associate, and •mainly because I do not agree with his application of the legal ¡principles to the particular facts in the case.
*223The accident was a novel one, hut I am not aware that that is Any reason against the maintenance of the action, though we find frequent statements in the cases cited to the effect that a carrier of passengers is not bound to provide against casualties never before lcnown.
In Jones v. Brooklyn Heights R. R. Co. (23 App. Div. 141) this ■court affirmed a judgment for the plaintiff where the accident was both novel and odd. A small electric light bulb, weighing but a few ounces, fell upon and injured a passenger, and the question of the defendant’s responsibility was not raised on the appeal.
Briefly stated, the plaintiff in the case at bar, a passenger in defendant’s electric car, without negligence on her part, was injured by the breaking of a curtain rod which was unable to withstand the pressure of a strong wind. The edges of the break were bright, showing, as my learned associate says, no flaw ; and lie seems to conclude that, as there was no flaw, the rod was not defective. But weakness is a defect, and that the rod was unable to withstand the pressure of a strong wind is abundant evidence of weakness, and, to my mind, sufficient evidence of negligence to require a submission ■of the question to the jury. Bes ipso loquitur.
Kelly v. N. Y. & S. B. R. Co. (109 N. Y. 44) is the only case which presents any difficulty, but it was there held that the defendant had done all it could, or was bound to do, and the evidence showed that frequent inspections were made. There was no evidence whatever as to the cause of the break. In the present case there is no evidence of any inspection, and abundant evidence as to the cause of the break.
The prevailing opinion quotes Judge Bradley, in the Palmer Case (120 N. Y. 170), to show that the degree of care as to different portions of the machinery and appurtenances varies, and also to show that the necessity of examination is somewhat dependent upon liability to impairment. The opinion is an interesting one, and to ■show that the question is one of fact for the jury, I continue the the quotation, beginning where the prevailing opinion terminates it (p. 176): “ But whether the system (of inspection) and the manner of its execution, are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court. It must, in view of the circumstances appearing by the evidence, be *224one of fact for the jury to determine upon proper instructions relating to the degree of care imposed upon the company; and while it is true that the question of fact so presented is somewhat speculative in the sense that it is not measured by any definite rule, it must nevertheless become a matter of judgment to be expressed by the jury and founded upon the evidence.”
It may be true that as to minor portions of a vehicle the carrier of passengers is not to be held to the highest degree of care ; but I do not think we may say, as a matter of law, that a portion of the side of a vehicle, designed to protect passengers from the weather, is such a minor detail as to relieve the carrier from the burden of proving that it was not at fault if such a portion of the side is shown to have been too weak to withstand the wind, and as a direct result of such weakness a passenger in the exercise of due care is injured.
The judgment should be affirmed.
Judgment reversed and new trial granted, costs to abide the event