Rice v. New York City Railway Co.

MacLean, J.

(dissenting). The plaintiff claimed that while on the rear platform of one of the defendant’s cars, and as he was about to alight, he received an electric shock thereon and sustained injury. Under the decision in D’Arcy v. Westchester El. R. Co., 82 App. Div. 263, the rule of res ipsa loquitur applied, but the defendant contends that it was error to charge: “ This is one of the cases in which the mere happening of the accident places upon the defendant the burden of explaining it and showing it did not happen through the negligence of the defendant. Ordinarily, that bu rden is upon the plaintiff, but in this case the burden *658of showing that the accident did not happen through the defendant’s negligence is upon the defendant.” The exception of the defendant thereto must needs he sustained un,(der the authority of Maher v. Metropolitan St. R. Co., 102 App. Div. 517, and the judgment rendered upon the verdict of the jury in favor of the plaintiff he reversed and a new trial ordered.

Judgment reversed and new trial ordered, with costs to appellant- to abide the event.

Judgment affirmed, with costs.