Hatch, J.:
The proof upon the part of the plaintiff tended to establish, and the jury were authorized to find, that the defendant city of New [65] York was so far responsible for the condition which was created in the street as to constitute negligence upon its part in permitting the condition to exist, so that under the proof liability was properly ■charged against it. So far as the defendants Burkard and Meyer are concerned, the evidence was sufficient from which the jury were authorized to find that they were responsible for the existence of the pile of sand in the street; that the same constituted a dangerous ■obstruction, and that its position therein was unauthorized by any permit under which they claimed the right to obstruct the street. The fact that these defendants were engaged in building, and that the obstruction in the street was of building material, authorized the inference that they had placed it 'there. (Lowner v. New York, N. H. & H. R. R. Co., 55 N. E. Rep. 805.) The evidence also justified the jury in finding that the deceased was guilty of no contributory negligence which prevented a recovery. Upon the main questions, therefore, the right to recover was established.
Several questions, however, arose upon the trial which, in view •of the disposition we make of the case, seem to require consideration. It was claimed by the defendants Burkard and Meyer that for the obstruction in the street which caused the injury they were not responsible. This claim was based upon evidence tending to •establish that these defendants had ordered material from a third party for the construction of a concrete sidewalk; that when the material was delivered it was examined by them and condemned and direction was given to cart the same away, and not unload it in the street. This direction was not obeyed, but, in opposition to the wishes and express direction of these defendants, the material was deposited in the street and there remained until the time of the •accident and became the producing cause of it. Upon this testimony these defendants insist that, as they were not responsible for •depositing the material in the street, no obligation was imposed upon them in respect thereto, and that they could not be made liable for any accident which occurred on account of it. We may observe upon this question that the evidence was abundant to establish that the injury was occasioned by the sand which these defendants had directed to be deposited in the street, and this being the condition of the proof and the court having properly submitted the rights of the [66] parties in a charge .covering both features of the case, the defendants could not complain. Assuming, however, that the pile of material which caused the injury was deposited in the street under the circumstances claimed by the defendants, we do not think that they would be relieved from the obligation of properly protecting persons lawfully exercising the right of use of the street as against the same. Laying aside the question of what the rights, liabilities, and duties of these defendants were under their permit to make use of the street, as to all material which might be deposited therein during their occupation of it, the case would still remain as one-where the parties themselves were primarily responsible for the-presence of the material, under their own statement and proof. They were the moving parties in causing the material to be brought to this place; they ordered it and expected it to be brought and left there, in consequence of which they were responsible for its presence; and even though they objected to its being placed in the street, they could not absolve themselves from the obligation, after it was deposited, which they owed to the traveling public of properly protecting them from an obstruction which they (these defendants) had been instrumental in causing. Whatever may have been the rights and liabilities as between these defendants and the person from whom the material was ordered, they cannot avail to shelter them from the obligation of taking care for the protection of persons lawfully in the street, although they had objected to the deposit of the material therein. To relieve from liability under such circumstances would permit an utter disregard of the rights of the traveling public in favor of a contractor who had a permit to-incumber the street. It is doubtful, however, if this question is in this case, for the reason that the court charged, in terms as broad as the ■ claim was made and with the consent of the plaintiff,, that no-liability would attach to the defendants under such circumstances. Subsequently the defendants requested the court to charge upon the-exact facts, which they claimed their evidence established, that they would be relieved from liability, and the court refused so to charge. We do not think that the refusal to charge this request presented any legal error, for the reason that the request which had been already charged covered every legal feature upon this branch of the case, to which the defendants were entitled; and having once. [67] charged fully in respect to the subject-matter, the court was not. bound to again reiterate it in other language. But if it were "otherwise, as we have already observed, the defendants for this reason would not be relieved from obligation. The charge as made also cures any error found in the refusal to charge that if the light was put up to warn the public of the presence of the mortar box, it would not justify an inference of an assumption of control over and responsibility for the pile of sand. But the court had already charged that if this was the material to the deposit .of which in the street the defendants had objected, they could not be held liable for injury sustained thereby. If it was in fact not such material, then the refusal so to charge was not error. •
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Hatch, J.:
The proof upon the part of the plaintiff tended to establish, and the jury were authorized to find, that the defendant city of New [65] York was so far responsible for the condition which was created in the street as to constitute negligence upon its part in permitting the condition to exist, so that under the proof liability was properly ■charged against it. So far as the defendants Burkard and Meyer are concerned, the evidence was sufficient from which the jury were authorized to find that they were responsible for the existence of the pile of sand in the street; that the same constituted a dangerous ■obstruction, and that its position therein was unauthorized by any permit under which they claimed the right to obstruct the street. The fact that these defendants were engaged in building, and that the obstruction in the street was of building material, authorized the inference that they had placed it 'there. (Lowner v. New York, N. H. & H. R. R. Co., 55 N. E. Rep. 805.) The evidence also justified the jury in finding that the deceased was guilty of no contributory negligence which prevented a recovery. Upon the main questions, therefore, the right to recover was established.
Several questions, however, arose upon the trial which, in view •of the disposition we make of the case, seem to require consideration. It was claimed by the defendants Burkard and Meyer that for the obstruction in the street which caused the injury they were not responsible. This claim was based upon evidence tending to •establish that these defendants had ordered material from a third party for the construction of a concrete sidewalk; that when the material was delivered it was examined by them and condemned and direction was given to cart the same away, and not unload it in the street. This direction was not obeyed, but, in opposition to the wishes and express direction of these defendants, the material was deposited in the street and there remained until the time of the •accident and became the producing cause of it. Upon this testimony these defendants insist that, as they were not responsible for •depositing the material in the street, no obligation was imposed upon them in respect thereto, and that they could not be made liable for any accident which occurred on account of it. We may observe upon this question that the evidence was abundant to establish that the injury was occasioned by the sand which these defendants had directed to be deposited in the street, and this being the condition of the proof and the court having properly submitted the rights of the [66] parties in a charge .covering both features of the case, the defendants could not complain. Assuming, however, that the pile of material which caused the injury was deposited in the street under the circumstances claimed by the defendants, we do not think that they would be relieved from the obligation of properly protecting persons lawfully exercising the right of use of the street as against the same. Laying aside the question of what the rights, liabilities, and duties of these defendants were under their permit to make use of the street, as to all material which might be deposited therein during their occupation of it, the case would still remain as one-where the parties themselves were primarily responsible for the-presence of the material, under their own statement and proof. They were the moving parties in causing the material to be brought to this place; they ordered it and expected it to be brought and left there, in consequence of which they were responsible for its presence; and even though they objected to its being placed in the street, they could not absolve themselves from the obligation, after it was deposited, which they owed to the traveling public of properly protecting them from an obstruction which they (these defendants) had been instrumental in causing. Whatever may have been the rights and liabilities as between these defendants and the person from whom the material was ordered, they cannot avail to shelter them from the obligation of taking care for the protection of persons lawfully in the street, although they had objected to the deposit of the material therein. To relieve from liability under such circumstances would permit an utter disregard of the rights of the traveling public in favor of a contractor who had a permit to-incumber the street. It is doubtful, however, if this question is in this case, for the reason that the court charged, in terms as broad as the ■ claim was made and with the consent of the plaintiff,, that no-liability would attach to the defendants under such circumstances. Subsequently the defendants requested the court to charge upon the-exact facts, which they claimed their evidence established, that they would be relieved from liability, and the court refused so to charge. We do not think that the refusal to charge this request presented any legal error, for the reason that the request which had been already charged covered every legal feature upon this branch of the case, to which the defendants were entitled; and having once. [67] charged fully in respect to the subject-matter, the court was not. bound to again reiterate it in other language. But if it were "otherwise, as we have already observed, the defendants for this reason would not be relieved from obligation. The charge as made also cures any error found in the refusal to charge that if the light was put up to warn the public of the presence of the mortar box, it would not justify an inference of an assumption of control over and responsibility for the pile of sand. But the court had already charged that if this was the material to the deposit .of which in the street the defendants had objected, they could not be held liable for injury sustained thereby. If it was in fact not such material, then the refusal so to charge was not error. •
We should find little difficulty in supporting this judgment, were it not for what we regard as a fatal error in the charge of the court upon the question of the burden of proof. Upon this subject the court charged in the following language, “ you must find that the plaintiff has maintained the burden of proving every essential fact by the greater weight of evidence; that is, that the theory submitted to you for your adoption, upon the part of the plaintiff, is more probable than the theory advanced upon the part of the defendants. So, if you reach that conclusion that the plaintiff has maintained the burden of proof placed upon her by law, she has established her case by a greater weight of evidence. All that means is, that the theory presented to you by the plaintiff must be more acceptable, more probable, and more consistent with your experience, than the theory advanced by the defendants. If it is not, she fails.” To this charge an exception was taken. We do not think that this part of the charge can be sustained. It is the well-settled rule that the burden of proof which is charged upon the person who asserts the fact requires that the jury shall be satisfied from the whole "case that the fact is proved, and if, from the whole case, the jury are not satisfied that the fact is established, the asserting party fails in bearing the burden. (Heinemann v. Heard, 62 N. Y. 448.) In the present case the jury were told that if the theory presented by the plaintiff was “ more acceptable, more probable and more consistent,” she would answer the requirement of the proof. It might well be that one theory of a case was more acceptable, probable and consistent than another, and yet be unsupported [68] by a preponderance of evidence, or so far supported by the evidence as to entitle the party to recover. Or it might well be that one theory was more acceptable, probable and consistent than another, and yet neither be sufficiently supported to warrant a finding that either theory was proven. The vice of this charge consists in defining the burden of proof as limited to a theory acceptable, probable and consistent. It cannot be so limited, for the reason that a recovery would be authorized when the case, although in theory presenting all of these elements, is still unproved. The burden of proof requires the establishment of the fact, and although the theory may meet every element suggested by the learned court for its support, it would not necessarily rise to the dignity of proving the plaintiff’s right to recover, and without such proof the case would not be established. (Taylor Ev. [9th ed.] 277; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45; Meagley v. Hoyt, 125 id. 771.) This error cannot be regarded as harmless, even though the charge of the court in other parts correctly conveyed to the jury the obligation resting upon the plaintiff. The court made definition in what the burden of proof consisted, which was not in any respect otherwise qualified or explained. The definition left the jury to find a verdict and make application of the rule, even though the case was not proved by a preponderance of evidence. That this was error the authorities establish, and for such error the judgment should be reversed.
All concurred, except Woodward, J., who read for affirmance.