I dissent from the reversal of the judgment in
this case. The relation of common carrier existed between the plain*517tiff and the defendant, which bound it to a high degree of care in transporting her safely. She was injured by a collision between the rear end of the car and the baggage truck while the car was passing around the curve, where the rear end swung several feet over the rail. The doctrine of res ipso loquitur is applicable, and the collision and attendant circumstances raised a presumption of negligence against the defendant in favor of the passenger. Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 386, 56 N. E. 988. Both the conductor and motorman were chargeable with knowledge of the extent to which the ends of the car would overhang the track in passing around this curve, and with like knowledge that as the car was entering upon, but before it was fully upon, the curve, the rear end, in passing around the curve, would swing out at a given point further than the forward end, in passing the same point, and that it did not follow that, because the front would pass a vehicle or other obstruction without a collision, the fear end would, also. The evidence justified a finding that the truck did not approach any nearer the track than it was at the time the front end of the car passed it. It was therefore a question of fact for the jury to determine whether the motorman was guilty of negligence in not foreseeing that, on account of the greater overhang of the rear end of the car, a collision would occur. If the motorman was negligent in this regard, there could be no question but that the negligence was a proximate cause of the accident, and there was no error in the charge considered erroneous in the prevailing opinion. If the motorman exercised that degree of care, caution, and vigilance which an ordinarily prudent person would have exercised under like circumstances, which seems to be the extent of the defendant’s duty to its passengers, so far as the operation of cars is concerned (Stierle v. Union Railway Co., 156 N. Y. 70, 50 N. E. 419), yet a finding that the defendant was negligent would still be justified. The jury would also have been justified in holding the defendant negligent for the failure of the conductor, while the car was passing around the curve, to be upon the rear platform, or in a position where he could have observed the approach or position of other vehicles, and have determined whether, on account- of the overhanging of the rear end of his car in swinging around the curve, a collision was likely to result, in which event he should have signaled the motorman to stop. What the trial justice said in the charge quoted in the prevailing opinion, relating to the preponderance of evidence, was not prejudicial. The charge would have been entirely accurate by eliminating what was said on that subject. After stating, in substance, that, if the motorman did not use ordinary care and prudence to avoid the collision, the court said:
“Then I think the plaintiff has established, by what would be known in the law as a ‘fair preponderance of evidence,’ the negligence on the part of the defendant company, through its motorman, in handling the car.”
If the jury found that the motorman was guilty of negligence which caused the collision, it necessarily followed that the defendant was responsible for that negligence; but, in determining whether the motorman was negligent or not, the jury should have been instructed, and doubtless would, had a request been made, that the burden of *518establishing that proposition by a fair preponderance of the evidence rested upon the plaintiff. The charge was not erroneous, and, if misleading in regard to what constituted a preponderance of evidence, it was the duty of the counsel for the appellant .to bring it to the attention of the court by some appropriate suggestion or request; and consequently the exception affords no ground for a reversal of the judgment.