(dissenting) :
I dissent. I think the court erred in refusing to charge the defendant’s seventeenth request, which was as follows : “ The mere *218fact that an accident happened and that plaintiff was injured is not sufficient to justify a recovery by the plaintiff, but the plaintiff must prove that he was injured by reason of some negligent act or breach of duty on the part of the defendant.” It is conceded in the prevailing opinion that this request was proper, and that the refusal to charge as requested would have been erroneous and necessitate a reversal of the judgment were it not for the fact that it had, in substance, already been charged.
I am unable, after a careful consideration of the charge as made, to discover where the court charged the proposition requested, even in substance. In the main charge the court, after stating that, the burden was upon the plaintiff of proving that he fell by an electric shock, then qualified such instruction by saying if the jury found that the fall “ was 'due to an electric shock, * * * all that is necessary, under such circumstances, for the plaintiff to do, is to prove the injury, and negligeiice on the part of the defendant will be presumed to such a degree as to call upon the defendant for an explanation and to.put it to its proof.” This is equivalent to saying if the jury believed the plaintiff’s testimony to the effect, that his fall was caused by a shock of electricity ? then the negligence of the defendant necessarily followed as a legal conclusion; in other words, if the plaintiff’s'fall was caused by an electric shock, that then the burden was upon the defendant to prove its freedom from negligence. Nowhere did the court instruct the jury, so far as I am able to discover, that upon the question of defendant’s negligence, even though plaintiff’s fall was caused by a shock of electricity, the burden of proof was, nevertheless, upon the plaintiff. Defendant was entitled to have the jury so instructed. (Kay v. Met. St. Ry. Co., 163 N. Y. 447; Jones v. Union Ry. Co., 18 App. Div. 267.)
I am of the opinion, therefore, that the judgment should be reversed and a new trial ordered.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.