The plaintiff was injured while a passenger on one of the traction company’s cars. . While it is true that his injuries were received by reason of a collision between this car and one operated by the Schenectady Railway Company, yet the primary cause of the injury was the misplacement, or the failure to remain where it was placed, of the tongue of the switch maintained and operated by the traction company, and we think it is a fair inference from the *104testimony that ■ such misplacement was caused by the concurring negligence of both defendants. Each of the defendants on the trial engaged in an- effort to cast the blame for the’ plaintiff’s injuries upon the other!
■ The case must be considered having regard to the difference in the degree of care which the. defendants were bound to exercise in relation to the plaintiff under the law. He haying been a passenger 'on one of the traction company’s cars, that company was bound to the exercise of the utmost human skill and .foresight with reference to maintaining, ■ operating and keeping in repair its tracks and switches in order to save him from harm. (Palmer v. D. & H. C. Co., 120 N. Y. 170; Coddington v. Brooklyn Crosstown R. R. Co., 102 id. 68; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 265; Koehne v. N. Y. & Queens Co. R. Co., 32 id. 419.) And the tongue of the switch having failed to remain in position or having been misplaced, because of some- unexplained or unascertained . causej it was not incumbent upon the plaintiff, as against the traction company at-least,, to show the cause of its being misplaced, but under the doctrine of res ijpsa loquitur that company was required to explain- its cause in order to relieve itself from thé presumption of negligence in causing the accident. (Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Seybolt v. N. Y., L. E & W. R. R. Co., 95 id. 562; Caldwell v. New Jersey Steamboat Co., 47 id. 282; Holbrook v. Utica & Schenectady R. R. Co., 16 Barb. 113; Gilmore v. Brooklyn Heights R. R. Co., 6 App, Div. 117.)
The Schenectady Railway Company, on the other hand,, was. bound to the exercise of reasonable and ordinary care only under the circumstances which confronted it. at the time; It bore the-same relation to the plaintiff as if he had been- driving his own horse and wagon upon the street instead of being a passenger on one' of the traction company’s cars. ( Unger v. Forty-second St., etc., R. R. Co., 51 N. Y. 497; Seagriff v. Brooklyn Heights R. R. Co., 31 App. Div. 595.)
Within.these principles of law it seems to me-that there was sufficient evidence before the learned referee to justify his conclusions, that .each .of. the defendants was guilty of negligence and that the negligence of each contributed to the plaintiff’s" injuries.
The negligence charged against the Schenectady Railway Uom*105pany in the complaint was that its caz’ vstn at an excessive rate of speed; that it was a defective caz*, arid that its employees upon the car were negligent.
There was no proof that it was a defective car, but there was proof given on behalf of the plaintiff that would justify the infei-enee of negligence on the part of the employees upon the car, growing out of the rate of speed at which the car was allowed to run at the time of the collision. The car had been switched over from the east-bound track to the west-bound track and stopped at a point about ten feet west of the westerly end of the permanent crossover. The traction company’s car was standing still on the eastbound track close to the east end of the crossover. Some one, presumably in the employ of the traction company, threw the tongue of the switch at the westerly end of the crossover and the Schenectady Company’s car was started in its attempt to run down easterly upon the west-bound track. McGraw, its motorman, saw that the switch was set for that ti’ack. He saw the traction company’s car standing at the other end of the switch seventy-five or eighty feet away; lie knew that he was running against the point-of the tongue of the switch, and not against the heel, and in a way that it was not intended to be used. He knew that it had no rubber or block in the switch to hold the tongue in place. His car was a very heavy one, about twice the weight and about twice the length of the traction company’s car. It had á double set of trucks of four wheels each, one set at either end of the car, which was from fifty to sixty feet long. It was a heavy down grade. Under such circumstances-reasonable and ordinary care would require him to proceed very slowly and to keep his car under control, so that the weight and the speed of the car would not jar the tongue from its position or misplace the switch, or if it did do that, so that his car might be stopped before injury7 had been done to a car standing so near upon the other track. Yet he swore that his car was moving about three or four miles an hour when he discovered the rear truck had taken the crossover. This was evidently true when the force of its contact with the traction company’s car is considered. The rear end of his car hit the westerly end of the traction company’s car, knocked it off. the track, burst it in and shoved it sideways from fifteen to twenty feet from the position it ticcupied. The fi’ont end *106of his car went a distance of forty or fifty feet east of the easterly end of the crossover before it was stopped.
While, under other circumstances, a rate of speed of three or four miles an hour could not fairly be regarded as evidence of carelessness, yet, with the situation presented here and with all these facts before the referee, we cannot say that his conclusion that the Schenectady Railway Company was negligent is unsupported by the evidence.
On the trial the Schenectady Railway Company rested its case on its exception to a denial of its motion for a nonsuit at the close of the plaintiff’s proof and announced that no evidence would be introduced on its behalf. This position was adhered to, except that its counsel asked a few questions upon cross-examination of the witnesses produced on behalf of the other defendant, the answers to which did not materially change the situation so far as the plaintiff’s case against it was concerned. It insists that any testimony beneficial. to the plaintiff’s case brought out upon the examination of the traction company’s witnesses cannot prevent it from having the full benefit of its exception to the denial of its motion for a nonsuit. It is not necessary to decide as to this contention, as the conclusion we have expressed as to the correctness of the decision of the referee as to the negligence of the Schenectady Railway Company is based entirely upon the plaintiff’s proofs without any reference to that produced by the traction company in its'defense.
We also think that the judgment against the traction company is amply sustained by the evidence under the rules of law applicable as against it. The negligence charged against it was that its tracks, switch and the appliances connected therewith were improper, dangerous, insufficient and defective. Notwithstanding the fact that the switch may have been misplaced by the jarring of the passage over it of the front trucks of the Schenectady Company’s car, yet the accident was caused because the tongue of the switch, did not stay where it was put by its own employees. It was bound under the traffic agreement to maintain and keep in repair the switch and the tracks. The only inference from the testimony is that the switch was operated by its own employees. It was bound- to the highest degree of care in this respect. It was using its tracks and switch in a way they were not intended to,be used, in order to facilitate the repairs *107to its tracks. In so using the switch, if the tongue would not remain in place without some mechanical means for-holding it there, it was its duty to provide such means. When the plaintiff proved that the accident happened in the way it did, the presumption was that the traction company was negligent, and it was not incumbent upon the plaintiff to show the cause for the switch being misplaced. Yet, notwithstanding that it had employees in the vicinity of the accident, it did not call a single witness who saw the accident.
We think, therefore, that the conclusion of the referee that both the defendants were negligent has sufficient support in the testimony.
The judgment as against both defendants should be affirmed, with costs.
All concurred, except Houghton, j., dissenting from affirmance of judgment against the defendant Schenectady Railway Company.
Judgment affirmed, with costs.