(dissenting):
Plaintiff does not claim that an employee of the defendant threw the bundle of papers which struck him, but concedes that it was thrown upon the platform by a carrier of the newspapers which were daily deposited on the various stations of the defendant railroad with the knowledge and sanction of the defendant.
The case was submitted to the jury upon the theory that the defendant owed a duty to the plaintiff as a passenger, who was lawfully on the platform awaiting an opportunity to board one of its trains, not only not to permit the person who had charge of the delivery of bundles of papers to throw a bundle from the train while in motion, but also to exercise reasonable care to prevent such an act.
Plaintiff testified that the guard was not on the front platform of the last car when the train was passing the station and there is no testimony to the contrary. Nor is he contradicted in his statement that he immediately after the accident talked with the station agent, one Schorsch, and one Braunstein, the newsdealer, about the accident. He also testified that three or four trains passed the station without stopping and that the bundle came from one of these trains. He established by the testimony of one Russell, an employee of the defendant and an instructor of its motormen, guards and conductors, that the conductors and guards must never allow newspapers to be thrown from the platform of a car at any time, and must never allow them to be removed from the cars until the train has come to a full stop; that it was the duty of the guard to be on the platform when a train passed a station without stopping, all of which are set forth in the company’s book of rules which was introduced in evidence. Plaintiff also put in evidence an order of the Public Service Commission which recites: “ That the following rules and *24regulations of the Interborough Rapid Transit Company on its subway and elevated lines be and the same hereby are approved.” Inter alia, the sections of the order provide: “3. One carrier with two of these bundles, one carried in each hand, will be allowed to enter the station and pass by the chopping box after depositing one ticket for himself and one ticket for the two bundles. 4. Not more than one carrier in charge of two such bundles will be permitted to ride on the front platform of the rear car of each train and another carrier with two bundles permitted to ride on the rear platform of the car next to the rear car. * * * 6. The bundles are to be deposited on the car platform at the points indicated by the guards [italics ours] and are to be carried off the train with one bundle in each hand. * * * 8. Throwing of bundles or packages of paper from trains is strictly prohibited and offenders will be liable to arrest. 9. In depositing bundles or packages on the station platform they must be so placed that passengers entering or leaving the car cannot stumble or fall over them.”
The next to the last section provides: “ For the information of all employees: Badges will be issued to the newspaper carriers,” etc., ostensibly to enable the guards to identify the carrier in charge of newspaper bundles on his car. The order also requires the employees to report any breach of these regulations, but does not indicate to whom the report shall be made.
Defendant called as witnesses a guard named Allaire and a conductor named Stietz, who were on one of the trains that had passed Eighteenth street without stopping at about the time of the accident. Stietz testified that his train had skipped Eighteenth street, but that he did not know whether it was the last train to pass the station without stopping and further that he did not see any bundle of papers thrown from his train and that he knew nothing of the accident. Allaire stated that he was the guard on the last car of his train; that his train skipped Eighteenth street; that nothing was thrown from the platform; that he was standing on the platform when the train passed the station and that there were no papers on the platform of his car at all.
Adolph Schorsch, the defendant’s station agent at the *25Eighteenth street station at the time of the accident, testified that the plaintiff complained to him of the injury immediately after the accident and that he thereupon telephoned to the train dispatcher to ascertain the number of the train from which the bundle was thrown; and that the newsdealer was in the habit of getting his papers regularly every day upon the platform. Schorsch was not permitted to testify what the dispatcher told him, but one Conniff, a train dispatcher, testified that in answer to Schorsch’s telephone inquiry, he told bfm that the number of the car was 1599. It is important to note that the witness Conniff answered the court’s query, “ Q. How do you know a train skipped the 18th Street station? ” by saying, “ I have no knowledge of that, your Honor.”
Braunstein, the newsdealer, was called by the defendant and testified: “ I see my bundle there and a man claimed they hurt him, the bundle. When I came outside, the train was passed and I find the bundle there on the platform.” Adolph Kramer, the carrier in charge of the bundles, testified that he was the only one who delivered papers to Braunstein at the Eighteenth street station at the time of the accident, but that the bundle was not thrown from the train. However, he failed to explain how it came to be on the station platform if the train did not stop, but testified: “ Q. You did not throw this bundle off at 18th Street, did you? A. I did not throw off. I don’t know. I put off the papers. I did not throw off any papers.”
We thus see from the testimony of the defendant’s own witnesses that the defendant had received information as to the accident and was, therefore, in a position to ascertain and produce the guards or conductors who were on the trains which did not stop at Eighteenth street. Nevertheless, only two trainmen were called by the defendant. In view of the fact that three or four trains had passed Eighteenth street at about the time of the accident without .stopping and that no testimony was given showing why the trainmen on other trains were not called, or from what train the bundle came, it was proper for the jury to consider these important circumstances in passing upon the question of defendant’s negligence.
If the defendant’s guard was on the platform at the time of the accident, that fact should have been established and. *26in that event it should have been shown what efforts, if any, he made not to permit the bundle of papers to be thrown off. If he was not on the platform when the train was passing the station as the plaintiff testified, that fact would be prima facie evidence of the defendant’s negligence. This conclusion is justifiable because of the rules which required the presence of the guard on the platform of the car from which the bundle was thrown and which imposed upon the guard an affirmative duty to indicate to the carrier of the papers where the bundles were to be deposited. Besides, when an official becomes aware of the presence of a passenger on the train who has a number of bundles for the purpose of depositing them at various stations, there is a legal obligation to see to it that the removal of the bundles should not be a menace to the safety of passengers.
The doctrine of res ipso loquitur is peculiarly applicable to the facts of this case.' That rule is well stated in 29 Cyc. 591: “ Perhaps a more accurate statement is that where the defendant owes to plaintiff a duty to use care, and the thing causing the action is shown to be under the management of the defendant or his servants and the accident is such that in the ordinary course of things does not occur if those who have the management or control use proper care, the happening of the accident in the absence of evidence to the contrary is evidence that it arose from lack of requisite care.” (See McNulty v. Ludwig & Co., 153 App. Div. 206, citing Griffen v. Manice, 166 N. Y. 188.)
The defendant owed the plaintiff a duty to provide a safe place for him to await the coming of the train. Moreover, there is no doubt that defendant had control and management over the distribution of the newspapers which caused the accident and that the Public Service Commission’s order as well as the other rules of the company requiring the guard to be on the platform when a train is in or passing through a station, presumably were promulgated for the purpose of guarding against just such an occurrence as is complained of here.
The appellant’s counsel cites a rule from 10 Corpus Juris, 901, as follows: Unless such agents or servants [of the carrier] know or ought to know that danger from fellow-*27passengers exists or is reasonably to be apprehended and can by the use of proper care prevent the injury, the carrier is not liable. Thus the carrier is not liable where the injury is caused by acts of a fellow-passenger which its agents or employees had no reason to apprehend and which they could not by the exercise of proper care prevent.”
This is undoubtedly a sound rule and is indeed peculiarly pertinent to the instant case, where it was shown that defendant realized the danger to its passengers in permitting bundles of papers to be delivered at station platforms by the order of the Public Service Commission which promulgated the rules heretofore detailed.
Had the guard been on the platform as the rules provided, he might have prevented the throwing of the newspapers. In Robinson v. Consolidated Gas Co. (194 N. Y. 37, 41) the court said: “ If the res, or the entire occurrence as proved, could not have happened without negligence of some kind, negligence is presumed without showing .what kind and the burden of explanation is thrown on the defendant. If, however, proof of the occurrence shows that the accident might have happened from some cause other than the negligence of the defendant, the presumption does not arise and the doctrine cannot properly be applied. Under such circumstances, it is for the jury to find whether the accident was owing to negligence on the part of the defendant, or to some cause for which the defendant was not responsible. The principles upon which the doctrine rests and the circumstances under which it should be applied were so clearly pointed out by Judge Cullen in Griffen v. Manice (166 N. Y. 188), the leading case upon the subject, that further discussion thereof is unnecessary.”
Assuredly in the case under review the occurrence as proved could not have happened without negligence of some kind and there can be no question that the defendant has failed to give any explanation from which it may be deduced it was not guilty of negligence.
It is true that the complaint in this action alleged specific acts of negligence and the case was tried on that theory. It is, however, clear from the case of D’Arcy v. Westchester Electric R. Co. (82 App. Div. 263) that the plaintiff in an action" for personal injuries does not waive the right to rely *28on the presumption of negligence arising out of the fact of the accident because he alleged or attempted to prove specific acts of negligence.
I think the verdict of the jury was correct and that the judgment should be affirmed.
Merrell, J., concurs .
Judgment and order reversed, with costs, and complaint dismissed, with costs.