Rice, P. J.,
Opinion by (after finding the facts as set out in the statement of facts):
It is apparent from the testimony and was frankly admitted by the defendant’s counsel on the argument, that in the damage suffered by the plaintiff no fault was attributable to his driver either in being in the place he was or in omitting to do what was possible to escape the collision. Their contention is, that there was no evidence that the injuries were caused by any negligence on the part of the defendant; in other words, that on the plaintiff’s own showing this was an unavoidable accident for which no one was responsible. In the discussion of this question they summarize the testimony of the plaintiff’s witnesses as follows: Two cars, east-bound, stood at the lower side of Smithfield street, and just behind the second car was plaintiff’s team and wagon. After the circus had passed, the first car started up Fifth avenue, and when it had gotten across Smithfield street — about sixty or seventy-five feet from the second car — suddenly it stopped and started to run backwards down the grade. The motorman of the second car, seeing the danger of a collision with his car, or attracted by the shouts of danger from the people on the street, started to move his car back, when it was struck by the first car and driven into the plaintiff’s team. It *106is argued with much force that the motorman of the second car was guilty of no negligence because his first duty was to protect his passengers. Even if this be granted, it by no means follows that the collision was an unavoidable accident. If by its negligence the defendant placed him in a situation where to avoid injury to its property and its passengers it was necessary for him to destroy or injure the plaintiff’s property, the doctrine of proximate cause cannot be invoked to relieve it from responsibility. To state the proposition in another form, collision with the plaintiff’s team and wagon was the natural and probable consequence of backing the first car down the descending grade into the second car, such a consequence as might and ought to have been foreseen. But it is urged that the sudden backing of the first car down the descending grade was not the voluntary act of the defendant but was a pure accident caused by the slipping of the trolley from the wire. It is true the defendant gave evidence to that effect, but on the other hand one of the plaintiff’s witnesses testified that the trolley was on the wire as the car came down. Whether or not the car came down the grade because the motorman, without fault on his part or that of the company, lost control of it was under all the testimony a question of fact for the jury. But it was not an admitted fact, nor was it to be presumed from the facts testified to by the plaintiff’s witnesses. Leaving that fact out of consideration, as we must in the present discussion, the question arises whether the plaintiff made out a prima facie case by proof of the facts heretofore summarized. Negligence is not to be presumed nor ordinarily to be inferred except where the •maxim res ipsa loquitur applies. It was incumbent on the plaintiff to show something more than the mere fact that the defendant’s car collided with his team and wagon, but when he had shown that the first car was backed from a point where the danger, if not the absolute certainty, of collision with his team might and ought to have been foreseen by those in charge of it, he had shown circumstances from which negligence might and naturally would be inferred. We are not convinced that he was bound to go further and disprove by affirmative evidence that those having the management of the car had lost control of it by unavoidable accident. In this view it is unnecessary to discuss the case from the standpoint of the defend*107ant’s evidence. It is sufficient to show that the plaintiff made out a prima facia case which he was entitled to have submitted to the jury.
Judgment affirmed.