Continental Insurance v. New York Gas, Electric Light, Heat & Power Co.

Haight, J. This action was brought to recover damages which the plaintiff is alleged to have sustained by reason of insurance which it has been compelled to pay to the owners of various tenements in premises Rimbers 4774-4784 Third avenue in the borough of the Bronx by reason of a fire which destroyed the building and personal property therein on or about the 25th day of February, 1900. The claim of the plaintiff was that the fire was caused by the electric light wires of the defendant through the negligence of its officers or servants. In submitting the case to the jury the trial court charged that the burden of proof rested upon the plaintiff to establish the negligence of the defendant. The plaintiff took no exception to this charge, but requested the trial judge to charge the jury that “if die jury find that the fire was caused by the escape of an electric current from the defendants’ wires, that *188 fact raises a presumption that the defendants • were negligent and the jury must find a verdict for the .plaintiff unless the defendants have overcome the presumption raised.” The judge so charged and the defendants took an exception. The effect of this charge was to change the burden which rested upon the plaintiff of establishing the fact that the fire resulted from the negligence of the defendants, and raised a presumption of negligence against the defendants which they must overcome in order to avoid a verdict in favor of the plaintiff. This, we think, was an error which calls for a reversal of the judgment. (Ludwig v. Met. St. Ry. Co., 71 App. Div. 210; reversed, 174 N. Y. 546, upon the dissenting opinion of Mr. Justice McLaughlin ; Kay v. Met. St. Ry. Co., 163 N. Y. 447; Heinemann v. Heard, 62 N. Y. 448, 455; Curran v. Warren Chem. & Mfg. Co., 36 N. Y. 153, 156.) The judgment of the Appellate Division should be reversed and a new trial ordered, with costs to abide the event. Cullen, Ch. J., Edward T. Bartlett, Yann, Werner, Willard Bartlett and Chase, JJ., concur. Judgment reversed, etc.