Each party to this action was rightfully in this street and engaged in a lawful pursuit. 27o contractual *468relations existed between them, and neither owed the other any duty not due to all persons lawfully using the street. There is no direct evidence that the locomotive from which the coal came was defective in design, construction, condition or operation, or that it was not supplied with the best known appliances for arresting sparks and cinders. It does not appear that more than this one coal came from the locomotive on this occasion, or that sparks or coals were emitted from it, or from any of defendant’s locomotives on other occasions. There is no evidence that on this occasion the employes in charge of defendant’s train did an act which ought not to have been done, or omitted to do an act which ought to have been done.

The counsel fcr the plaintiff contends that the evidence is sufficient, in the absence of explanatory evidence in behalf of the defendant, to authorize the jury to infer, from the falling of this coal, that the defendant negligently used a locomotive improperly designed, defectively constructed, out of repair or negligently operated. The evidence discloses an isolated colorless fact, the emission of a coal smaller than a pin head, and the rule, res ipso loquitur, has not been extended far enough to authorize the inference, from this fact, that the defendant was guilty of actionable negligence. It is urged that the rule that the burden is upon the party averring negligence to affirmatively establish it, should not be given its usual force or signification in this case, because it is said that the defendant could more easily have proved the condition of the locomotive than the plaintiff. The jdaintiff did not, by her complaint or evidence, inform the defendant from which train the coal fell, in which direction the train was going, the hour of the accident or of any facts by which the defendant could have learned which locomotive emitted the coal; and, in the absence of the slightest evidence that the defendant knew or had the means of identifying the locomotive complained of, or that there were appliances in general use by which the emission of sparks of the size of the one which entered the plaintiff’s eye might have been prevented, we think the fact that the defendant did not voluntarily assume the burden of showing the condition of *469all of its locomotives in use on that part of its line, during the afternoon of August 18, 1879, should not have been allowed to weigh with the jury. The evidence of negligence in the case at bar falls far short of that given in Ruppel v. Manhattan Railway Company (13 Daly, 11); Burke v. Manhattan Railway Company (13 id. 75); or in McNaier v. Manhattan Railway Company (46 Hun, 502; 4 N. Y. Suppl. 310).

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Potter and Bradley, JJ., dissenting.

Judgment reversed.