law annexes to his business.137

For example, if the railway train upon which the passenger is making his transit is obstructed by some casualty, let us say by the burning of an oil tank, and the passengers are waiting for a train from the opposite side of the wreck to take them on,-during this period of waiting, the railroad company is required to exercise no more than ordinary care and prudence toward passengers to keep them from getting burned to death, as children might be. It is not bound to restrain them by physical force from unnecessarily exposing themselves to danger from an explosion of the burning tank by approaching too near to it.138

§ 2750. Care Required where Passengers are Transported in Other than Passenger Cars.-It has been held that a person who purchases a ticket for a regular passenger train has a right to be conveyed in a passenger coach instead of a baggage car, unless the latter is as safe a vehicle as can be procured by the utmost care and diligence.140 Another court has reasoned that where a caboose which was usually attached to a freight train, and which was habitually used for passengers, was in the repair shop, and a common box car with temporary rude seats was substituted to accommodate passengers, and the use of such box car was more dangerous to passengers, the degree of care imposed by the law upon the company was thereby increased. 141

§ 2751. This Obligation of Care toward Passengers, how Affected by Statute.-Compliance with the requirements of a statute enacted to promote the safety of passengers will not of itself exonerate the carrier,142 although a failure to comply with it would be what the courts frequently term negligence per se; that is, the injured passenger recovers damages without proof of any other negligence than a failure on the part of the carrier to comply with the statute." Thus,

fantastical, and serves only to illustrate the extent to which the railroad companies are gradually getting possession of the judges. See, in support of the view that the high degree of care which the law imposes on carriers of passengers extends to the operation of his means of transit, ante, § 2723; post, §§ 3481, 3632.

137 Ante, § 2679.

138 Conroy v. Chicago &c. R. Co., 96 Wis. 243; s. c. 38 L. R. A. 419; 8 Am. & Eng. Rail. Cas. (N. S.) 714; 70 N. W. Rep. 486.

143

140 Baltimore &c. R. Co. v. Swann, 81 Md. 400; s. c. 32 Atl. Rep. 175.

141 Missouri &c. R. Co. v. Holcomb, 44 Kan. 332; s. c. 24 Pac. Rep. 467 (injury to passenger in consequence of train starting up with violent jerk).

142 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Brown v. New York &c. R. Co., 34 N. Y. 404; rev'g s. c. 31 Barb. (N. Y.) 385.

143 Blair v. Milwaukee &c. R. Co., 20 Wis. 254; Vol. I, § 10, and citations.

a statute requiring railroad companies to fence their tracks has been construed as enacted for the purpose, in the main, of protecting the lives of those transported upon such roads.144 Hence, if any animal gets on the track in consequence of its being unfenced, and a train runs upon it and is thereby thrown from the track, and in the accident a passenger is injured, there is a clear case for recovery of damages from the company, although those in charge of the train were guilty of no personal negligence in running over the animal.145

ARTICLE II. PRESUMPTION OF NEGLIGENCE FROM THE HAPPENING OF THE ACCIDENT.

SECTION

2754. Nature of this presumption. 2755. A further explanation of this

presumption.

2756. This presumption arises, not
from the happening of the
accident, but from a consid-
eration of the cause of the
accident.

2757. Arises only where the acci-
dent proceeds from some-
thing within the control of
the carrier.
2758. An approved judicial state-
ment of this presumption.
2759. This presumption arises from

accident to carrier's vehicle. 2760. This presumption arises where injury proceeds from carrier's servant.

2761. Illustrations of this presump-
tion.

2762. Further illustrations.
2763. No such presumption where

the defect is equally known
to the passenger and the
carrier.

2764. Nor where the accident pro-
ceeds in part from a volun-

tary movement on the part
of the passenger.

SECTION

2765. Nor where the accident pro-
ceeds from something whol-
ly disconnected from the
business of the carrier and
which he is not bound to
provide against.
2766. Nor where the injury proceeds
from the "act of God."

2767. Nor where the injury proceeds
from the act of another pas-
senger or other third per-

son.

2768. Further of this exception. 2769. Nor where cause of accident is not susceptible of proof. 2770. Burden of rebutting this presumption rests on the carrier.

2771. What the carrier must prove
to rebut this presumption.
2772. Further of evidence to rebut
this presumption.

2773. This presumption takes the
question of negligence to
the jury in all cases.
2774. Evidence to overthrow this
presumption.

2775. Rules under particular stat-
utes.

§ 2754. Nature of this Presumption.146-In every action by a passenger against a carrier to recover damages predicated upon the neg

144 Corwin v. New York &c. R. Co., 13 N. Y. 42, 53, per Denio, J.; Blair v. Milwaukee &c. R. Co., 20 Wis. 254.

145 Blair v. Milwaukee &c. R. Co.,

20 Wis. 254. Compare Vol. II, § 2046.

146

This section is cited in §§ 2759, 2785, 2798, 2807, 2809, 2813, 2818,

ligence or misconduct of the latter, the burden of proof, in the first instance, is, of course, upon the plaintiff to connect the defendant in some way with the injury for which he claims damages. 147 But when the plaintiff has sustained and discharged this burden of proof by showing that the injury arose in consequence of the failure, in some respect or other, of the carrier's means of transportation, or the conduct of the carrier's servants, then, in conformity with the maxim res ipsa loquitur, a presumption arises of negligence on the part of the carrier or his servants, which, unless rebutted by him to the satisfaction of the jury, will authorize a verdict and judgment against him for the resulting damages. Stated somewhat differently, the general rule may be said to be that where an injury happens to the passenger in consequence of the breaking or failure of the vehicle, roadway, or other appliance owned or controlled by the carrier, and used by him in making the transit, or in consequence of the act, omission or mistake of his servants, the person entitled to sue for the injury makes out a prima facie case for damages against the carrier, by proving the contract of carriage, that the accident happened in consequence of such breaking or failure, or such act, omission or mistake of his servants, and that, in consequence of the accident, the plaintiff sustained damage.148

2825, 2840, 3484, 3505, 3508, 3545, 3609, 3628.

147 Pennsylvania &c. R. Co. v. Lyons, 129 Pa. St. 113; s. c. 47 Phila. Leg. Int. 179; 41 Am. & Eng. Rail. Cas. 154; 25 W. N. C. (Pa.) 6; 18 Atl. Rep. 759; State v. Maine &c. R. Co., 81 Me. 84; s. c. 16 Atl. Rep. 368. It is therefore proper to instruct the jury in such a case that the mere fact that a passenger on a railroad train sustains an injury while on the road, does not entitle him to a verdict, but that he must show that the accident was caused by a lack of due care on the part of the company: Buck v. Manhattan R. Co., 32 N. Y. St. Rep. 51; s. c. 10 N. Y. Supp. 107; s. c. aff'd 134 N. Y. 589. So, also, a passenger who, in alighting from a railway car, receives an injury which he alleges was caused by the neglect of the company to stop its train long enough to enable him to leave it safely, assumes the burden of proving such neglect: Pennsylvania &c. R. Co. v. Lyons, 129 Pa. St. 113; s. c. 47 Phila. Leg. Int. 179; 41 Am. & Eng. Rail. Cas. 154; 25 W. N. C. (Pa.) 6; 18 Atl. Rep. 759.

148

18 Iron R. Co. v. Mowery, 36 Ohio

St. 418; Wilson v. Northern Pacific R. Co., 26 Minn. 278; Pattee v. Chicago &c. R. Co., 5 Dak. Ter. 267; s. c. 38 N. W. Rep. 435; Ohio &c. R. Co. v. Voight, 122 Ind. 288; s. c. 23 N. E. Rep. 774; Bonner v. Grumbach, 2 Tex. Civ. App. 482; s. c. 21 S. W. Rep. 1010; White v. Boston &c. R. Co., 144 Mass. 404; s. c. 11 N. E. Rep. 552; Miller v. Ocean Steamship Co., 118 N. Y. 199; s. c. 23 N. E. Rep. 462; 28 N. Y. St. Rep. 874; Memphis &c. Packet Co. v. McCool, 83 Ind. 392; s. c. 43 Am. Rep. 71; 8 Am. & Eng. Rail. Cas. 390; George v. St. Louis &c. R. Co., 34 Ark. 613, 624; discussion in Dougherty v. Missouri R. Co., 9 Mo. App. 478; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; Railroad Co. v. Pollard, 22 Wall. (U. S.) 342; Pittsburgh &c. R. Co. v. Thompson, 56 Ill. 138; Baltimore &c. R. Co. v. Noell, 32 Gratt. (Va.) 394, 399; Gleason v. Virginia &c. R. Co., 140 U. S. 435; s. c. 35 L. ed. 458; 11 Sup. Ct. Rep. 859; 44 Alb. L. J. 33; Georgia R. Co. v. Love, 91 Ala. 432; s. c. 8 South. Rep. 714; Wynn v. Central Park &c. R. Co., 14 N. Y. Supp. 172; s. c. 38 N. Y. St. Rep. 181; s. c. rev'd on the facts in 133 N. Y. 575 (in this case, the chain of the

§ 2755. A Further Explanation of this Presumption.—Although it is never strictly true, in relations not springing out of contract, that a presumption of negligence arises from the mere fact that an accident has happened, without more, that is, the mere fact that B has been accidentally injured will not raise a presumption that A has injured him,-yet, where A has, for a consideration, undertaken a certain duty to B, and has failed in the performance of it, it is obvious that B makes out a case for damages against A by proving that A has undertaken that duty and failed in its performance, without more. Of course, this supposes that B's evidence simply discloses facts sufficient to show the undertaking of such duty by A, and A's failure to perform it. It may be that in at

tempting to make this appear, B will be obliged to give evidence of circumstances which, while showing the undertaking of the duty, and the failure, carry along with them evidence of a legal excuse on the part of A for not discharging the duty which he had undertaken. Thus, a railway company undertakes to transport B from the city of C to the city of D. A bridge upon the company's road has been burnt down, and, notwithstanding due inspection of its road by the company, this fact is not discovered until the train on which B is plunges into the chasm and B is killed. Under a statute providing for the survival of actions in cases where the injury results in death, B's widow brings an action against the railway company. Now, it is supposed that if her evidence shows that the company contracted, for a consideration, to carry B as stated, and that, owing to the burning of one of the company's bridges, an accident happened in which B was killed, she makes out a case against the company. But suppose that the evidence that she is obliged to introduce touching the facts of the accident shows that the bridge was burned down by a hostile force at war with the constituted authorities of the government. Here, it is supposed, the evidence taken together would not raise a presumption of negligence on the part of the company, and would not be sufficient to make out her case, unless she should also show that, notwithstanding the bridge was burnt by the public enemy, yet, if it had been properly watched, the men in charge of the train would have been apprised of the accident in time to have avoided the consequences from it which happened.149 Again, the evidential facts introduced by the plaintiff may be such as to present at the same time evidence of negligence on the part of the defendant and of contributory negligence on his own part. For, although the carrier is under a high degree of care to carry the passenger in safety, this does not absolve the passenger from the duty of taking ordinary care to avoid being injured. If the evidence for the plaintiff is of such a character as to present at the same time these two questions alone, then the question as to the burden of proof does not arise at all; it will be for the court to consider whether the facts in proof amount to what the books term evidence of negligence in the carrier, and also whether they amount to evidence of negligence in the passenger. 150 The foregoing rule refers to the legal value of certain evidential facts, and, like many other legal rules, it is in danger of being misapplied

149 Sawyer v. Hannibal &c. R. Co., 37 Mo. 240, 260.

150 A good illustration of this is the case of Gee v. Metropolitan R.

Co., L. R. 8 Q. B. 165; s. c. 42 L. J. (Q. B.) 105; 21 Week. Rep. 584; 28 L. T. (N. S.) 282. See also Laing v. Colder, 8 Pa. St. 479.