Opinion
June Term, 1897.
William L. Carey, for the appellant.
James C. Church, for the respondent.
We are of the opinion that the case made by the plaintiff was sufficient to call upon the defendant for an explanation of the cause of the fire. The obligation resting upon the defendant was to exercise the utmost care and diligence suggested by human prudence and foresight to insure the safety of the passengers it had received for carriage. ( Palmer v. D. H.C. Co., 120 N.Y. 170. ) If we assume that the cause of the fire was the burning out of the electric fuse connected with the motor, and that it was placed upon the car as an appliance for its safe operation, the case would not be changed. The effect of this assumption does not carry the case beyond the fact that in ordinary operation the fuse blows out with an "attendant flash," to use the expression of the defendant's counsel. It was not claimed upon the argument that the blowing out of a fuse, in the usual course, was attended with any other display than a flash of light, and we may take notice that the operation of street cars by electricity is not attended by the appearance of a car on fire, or that it travels upon the track in a blaze of fire. When this phenomenon is present it indicates an extraordinary condition and the presence of causes which are not usually co-existent in the ordinary operation of the car. Under such circumstances, the doctrine approved by us in Gilmore v. Brooklyn Heights R.R. Co. ( 6 App. Div. 117) has precise application.
The child who was injured testified that she saw a blaze of fire coming from the box alongside of the motorman, and becoming frightened jumped from the car. Another witness stated that she saw the car fifty or sixty feet away, coming down the street in a blaze of fire; that she also saw a flame of fire dashing through the car where the child was sitting. Another witness was called to the door of his house by a cry that the car was on fire, and saw the car was all aflame. This testimony establishes the fact that the appearance of the car, with the attendant fire, was extraordinary in character, and entirely different from the mere blowing out of a fuse with its attendant flash. The condition was so far extraordinary and unusual as to call upon the defendant for explanation. If the mere fact that a fuse blew out conclusively exempted the defendant from liability, it would lead us to the conclusion that it would be so exempted even though car and passengers be entirely consumed. We are of opinion that a case was made which authorized the jury to infer negligence and which called upon the defendant to explain. The court, therefore, erred in dismissing the complaint.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.