Hyman Blumenthal, Appellant, v. Brooklyn Union Elevated Railroad Company and The Long Island Railroad Company, Respondents

Hyman Blumenthal, Appellant, v. Brooklyn Union Elevated Railroad Company and The Long Island Railroad Company, Respondents. Second Department, October 31, 1913. Railroad — injury to passenger from electrical disturbance on car — liability of separate companies operating a through route — evidence. Action by a passenger against two railway companies owning separate routes, so connected as to make a through route, to recover for personal injuries sustained by Are resulting from an electrical disturbance on the car, which occurred either upon a track owned in common by the two companies, or upon part of the track owned by one of the companies. Held, that the electrical disturbance was sufficient evidence of negligence to demand evidence of proper care on the part of the defendants; that a judgment digmissing the complaint as to one of them should be reversed and a new trial granted; that a verdict in favor of the other defendant upon the issues submitted was not against the weight of evidence. Appeal by the plaintiff, Hyman Blumenthal, from a judgment of the Supreme Court in favor of the defendant Brooklyn Union Elevated Railroad Company, entered in the office of the clerk of the county of Kings on the 28th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1912, denying plaintiff’s motion for a new trial made upon the minutes. Appeal by the plaintiff, Hyman Blumenthal, from a judgment of the Supreme Court in favor of the defendant The Long Island Bailroad Company, entered in the office of the clerk of the county of Queens on the 28th day of March, 1912, upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court upon a trial before the court and a jury at the Queens County Trial Term. Nathan Ottinger, for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent Brooklyn Union Elevated Railroad Company. William C. Beecher [ Joseph F. Keany with him on the brief], for the respondent the Long Island Railroad Company. [MAJORITY — Per Curiam:] Per Curiam: Two carriers owned separate railroads which were connected so as to make a through route between New York and Bock-away, over which they arranged to carry passengers for a fare whereof each company should receive a stated part. The Long ' Island owned that part of the connecting railway called the “ incline,” and both companies beneficially owned the remainder of it, but as to all of it and the trains using it the Long Island had immediate control. The plaintiff, a passenger from New York to Bockaway, was injured proximately by fire resulting from electrical disturbance on the car, which occurred, as plaintiff insists, and in this he finds support in the evidence, either upon the common track, the incline, or the main tracks of the Long Island. In either case the Long Island was a responsible carrier. But the complaint was dismissed as to it when plaintiff rested, and after further evidence the jury found a verdict in favor of the Brooklyn. The electrical manifestation was abnormal to the appointed use and was sufficient evidence of negligence to demand a showing of proper care on the part of the carrier in regard to whatever was a competent cause of it. The fact that the cars were furnished and manned by the Brooklyn did not entitle the Long Island to dismissal of the complaint, although it could avail itself of the care observed by the associate company; yet for the purposes of the use of the common track and for its own tracks it, as regards the passengers, adopted the tr-ain and the crew and shared the responsibility or alone bore it, and as the case stood there was a question for the jury. The evidence, including the contracts, shows that the Long Island was the more influential factor as to the connection and ultimately responsible as to its own tracks. In the case against the Brooklyn company the plaintiff undertook to attribute the fire to a short circuit from the lead wire, from which the insulation had been burned, coming in contact with a part of the car, and the court charged the jury, “You will have to be able to point your finger to the negligence of the defendant,” but the plaintiff’s counsel, although his attention was directed to it, disclaimed a wish to proffer requests or exceptions. While the doctrine of res ipsa loquitur was applicable, the plaintiff did not invoke it, and was contented that the court should not, and the verdict upon the issues submitted was not against the weight of evidence. The judgment and order as to the Brooklyn Union Elevated Railroad Company should be affirmed, with costs, and the judgment as to the Long Island Railroad Company reversed and a new trial granted, costs to abide the event. Jenks, P. J., Burr, Thomas, Rich and Stapleton, JJ., concurred. Judgment and order as to the Brooklyn Union Elevated Railroad Company unanimously affirmed, with costs. Judgment as to the Long Island Railroad Company reversed, and new trial granted, costs to abide the event.