Israel Meschneck, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent

Israel Meschneck, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent. Second Department, March 23, 1908. Negligence — injury on street car — failure to prove ownership — evidence — presumption. In an action to recover for injury alleged to have been received by a passenger on one of the defendant’s cars on a line which extended across a city bridge, the complaint is properly dismissed’when the defendant denies that the injury occurred on its car and the plaintiff gives no proof that the ear on which he was injured was owned by the defendant or that the defendant had the exclusive occupancy of the bridge on which the injury occurred. However, it is error to dismiss the complaint upon the merits where there is no other defect of proof. There is no presumption that the possession of the tracks over a public bridge is exclusive to a particular railroad company using them. Appeal by the plaintiff, Israel Mesohneck, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 30th day of September, 1907. David Drechsler, for the appellant. F. R. Stoddard, Jr., for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: I think that the defendant was entitled to a dismissal of the com- . plaint for the failure of the plaintiff to show that he was a passenger on one of the defendant’s cars at the time of the alleged accident. The plaintiff pleaded that the defendant operated a certain line of street railway, of which a part extended through the Williamsburgh bridge, and that the accident happened when he was a passenger on one of tlie defendant’s cars. The defendant admitted that it worked a railroad and that a part of its railroad extended through the Williamsburgh bridge, but it denied that the accident happened while the plaintiff was upon one of its cars. The defendant offered no evidence, and at the close of the case the court dismissed the complaint on the merits. The point now discussed was specifically raised on the motion made for dismissal at the close of the plaintiff’s case. The plaintiff testified that he became a passenger on a Sumner Avenue car and that the accident happened while the car was on the new bridge. But there was no proof that the Sumner Avenue cars were owned or worked by the defendant. And there was no proof that the defendant corporation had the exclusive occupancy of the new or Williamsburgh bridge. The rule applied by this court in Jennings v. Brooklyn Heights R. R. Co. (121 App. Div. 587) does not obtain because the presumption is not (as in the case of a city street) that the possession of the tracks over the bridge by the defendant is exclusive. In other respects the plaintiff did not fail to establish a prima facie case, for he was entitled to invoke the rule of res ipsa loquitur. Although the court was not bound to find for the plaintiff on the evidence, it was not free to dismiss the plaintiff for failure to make out a case of negligence save for the defect in proof which I have indicated. The dismissal could not be put upon the merits. (Peggo v. Binan, 72 App. Div. 434.) The judgment is modified by striking out the statement that it was upon the merits, and as thus modified it is affirmed, without costs. Hooker, Gaynor, Bioh and Miller, JJ., concurred. Judgment of the Municipal Court modified by striking out the statement that it was upon the merits, and as thus modified affirmed, without Costs.