It is not our intention to express any opinion upon the merits or to repeat the facts further than to show that the two questions, of the negligence of the defendant and the freedom from negligence 'of the plaintiff’s intestate which the jury were called upon to determine, were close, and that any incompetent evidence admitted which Could affect the jury would for that reason be necessarily harmful. No one saw this accident, and the inferences which the jury were called upon to draw were supplied solely from the position of the body under the wagon and the condition of the roadway at the place where the accident occurred. The plaintiff suggested two causes, for both of which it was claimed the defendant would be responsible, one the rut in the road, and the other the bricks which were permitted to litter the roadway and which the defendant was intending to use in connection with his contract for building the sewer along such roadway.
It appeared from the evidence that the accident did not occur at the place where the rut in the road was located, for the wheels of the wagon extended west of the track, and the plaintiff finally rested upon the claim that the accident was caused by bricks which were allowed to be placed in the roadway. As to how long prior to the accident these bricks were placed there or by whom does not *213appear, but the inference which it is claimed could be drawn from the fact of their 'presence in the roadway is that they were intended for and were delivered to the defendant. Upon this branch of the case the court charged that there was .no direct evidence that the brick in question had been placed in that part of the roadway by the defendant. It is conceded, however, that it was intended, to use brick in the sewer, and that for that purpose for some time prior to the accident bricks had been carted there daily and piled in tiers along the road, and it was testified that for a considerable period some of the brick had been strewn along between the pile and the track, and that just before the accident two loads had been dumped in the roadway near the spot. The record is equally barren of any direct evidence that it was the bricks that caused the upsetting of the wagon.
The contention, therefore, of the appellant is, that the jury, instead of being presented with evidence from which legal inferences could be drawn, were allowed to speculate as to what caused the accident, and were permitted to guess whether or not it was, caused by something for which the defendant was responsible.
Assuming for the sake of argument, but without deciding, that the proof offered was sufficient to support the plaintiff’s case, it will be seen that incompetent evidence tending to show that a prior accident had happened in this vicinity which was caused by bricks was necessarily harmful, because it could not but have had great influence with the jury. Over the objection and exception of the defendant, a witness was permitted to testify that thr.ee weeks prior to the accident here in question, he met with an accident at the same spot, which he describes as twenty feet north of telegraph pole No. 631, near the Albany post road. Unless it could be shown that such an accident three weeks before was due to a like cause, and was one for which the defendant was responsible, it was clearly incompetent. But no reason is given for injecting the issue of another prior and totally different accident into the case, for it is clearly “res inter alios aotaP Its only purpose was to prejudice the jury against the defendant by the suggestion that, perhaps, he might be the responsible cause of the prior accident and was reckless in his use of the roadway.
For the error in admitting this incompetent evidence the judg*214riient appealed from should he reversed and a' new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, J-L, concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.