unless its boundaries are carefully ascertained. We doubt whether these boundaries have been better summarized than by Messrs. Shearman and Redfield in their excellent work on Negligence, where they say there must be "prima facie proof that the proximate cause of such injuries was a want of something which, as a general rule, the carrier was bound to supply, or the presence of something which, as a general rule, the carrier was bound to keep out of the way?' 9151 § 2756. This Presumption Arises, not from the Happening of the Accident, but from a Consideration of the Cause of the Accident. 152. It has been pointed out by an able judge that the presumption which arises in these cases does not arise from the mere fact of the injury, but from a consideration of the cause of the injury. Thus, it was said by Ruggles, J.: "A passenger's leg is broken while on his passage in the railroad car. This mere fact is no evidence of negligence on the part of the carrier, until something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumption of negligence immediately arises,-not, however, from the fact that the leg was broken, but from the circumstances attending the fact. On the other hand, if the witness who proves the injury swears that, at the moment when it happened, he heard the report of a gun outside of the car and found a bullet in the fractured limb, the presumption would be against the negligence of the carrier. It is incorrect, therefore, to say that the negligence of the carrier is to be presumed from the mere fact that an injury has been done to the plaintiff. The presumption arises from the cause of the injury or from other circumstances attending it, and not from the injury itself."153 As shown by other decisions, the meaning of the foregoing doctrine is that the mere fact that a passenger has sustained some injury of an unknown or obscure character, proceeding from an unknown or obscure source, while in transit on the carrier's vehicle, does not of itself raise the presumption that the injury proceeded from the negligence of the carrier. The presumption arises from a consideration, collectively, of the fact of the injury, and of the kind or source of it. The fact of an injury alone is not sufficient. It must be traced to the carrier. It must be shown to have proceeded from something under his control, or from some danger which, under the obligation of extraordinary care, 151 Shear. & Redf. on Neg., § 280. This statement of doctrine was cited with approval in Railroad Co. v. Mitchell, 11 Heisk. (Tenn.) 400, 403. See also Miller v. St. Louis R. Co., 5 Mo. App. 471. 152 This section is cited in § 2766. 153 Holbrook v. Utica &c. R. Co., 12 N. Y. 236. already spoken of, it was his duty to anticipate and provide against. These principles are stated more or less imperfectly in a good many cases. In one case it is reasoned that no presumption of negligence on the part of a carrier arises from the mere fact of an injury to a passenger on its train, boat, or other means of transportation; but that, to create such a presumption, there must be some accident through such means of transportation.154 This statement is too narrow, though doubtless correct under the facts before the court. Cases may be imagined where an injury to a passenger will proceed from something which it was the duty of the carrier to provide against, and yet where there was no accident through the carrier's means of transportation.155 154 Herstine v. Lehigh Val. R. Co., 151 Pa. St. 244; s. c. 25 Atl. Rep. 104; 31 W. N. C. (Pa.) 49. 155 The Court of Appeals of New York, affirming the Supreme Court, have held that an instruction to a jury that the mere fact that a passenger on a railroad train sustains an injury while in transit, does not entitle him to a verdict, but that he must show that the accident was caused by lack of due care on the part of the company, was substantially correct: 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 (mem.). That the mere fact of an abstract injury to a passenger while in transit, without more, raises no presumption of negligence against the carrier, is a proposition which can not be disputed on principle, and which has been affirmed in many cases: Hawkins v. Front Street &c. R. Co., 3 Wash. 592; s. c. 28 Pac. Rep. 1021. Nor does it make any difference that the passenger was injured while being in the exercise of ordinary care, unless it is shown that the cause of the injury proceeded from something within the control of the carrier, or within his power to foresee and guard against by the exercise of that degree of care which the law puts upon him: Chicago City R. Co. v. Rood, 163 Ill. 477; s. c. 45 N. E. Rep. 238. For example, where a passenger received an injury from a fall from the railway train of the defendant, the mere fact of his fall raised no presumption of negligence against the defendant: Jarrell v. Charleston &c. R. Co., 58 S. C. 491; s. c. 36 S. E. Rep. 910. It is reasoned that the presumption of negligence on the part of a carrier arises upon the occurrence of an injury to a passenger in consequence of something done or omitted, in connection with the carrier's appliances of transportation or the construction of its road: Fleming v. Pittsburgh &c. R. Co., 158 Pa. St. 130; s. c. 22 L. R. A. 351; 27 Atl. Rep. 858. This is plainly true, but it is too narrow a definition. The carrier's appliances of transportation include his servants; and if the injury proceeds from their act or omission in managing his physical means of transportation, the same presumption arises: Memphis &c. Packet Co. v. McCool, 83 Ind. 392; s. c. 43 Am. Rep. 71. It is also reasoned that an event so disconnected from the operations of the business of the carrier as not to involve the safety or sufficiency of his instrumentalities, or the negligence of his servants, creates no such presumption, but leaves the burden of proving negligence upon the plaintiff averring it: Pittsburgh &c. R. Co. v. Williams, 74 Ind. 462. The meaning evidently is that it leaves the burden of proving negligence by additional evidence upon the plaintiff averring it; since the presumption under consideration, when rightly applied, is one of the means of proving negligence. The meaning evidently is that where the injury to the passenger proceeds from something so wholly disconnected with the carrier's means of transit, that, notwithstanding the high degree of care which the law puts upon the carrier, he ought not to be required to anticipate it, and to guard against it, then § 2757. Arises Only where the Accident Proceeds from Something within the Control of the Carrier. 156-From these considerations, it is clear that the evidence adduced by the plaintiff to lay the foundation for this presumption, must tend to show that the injury resulted from something within the control of the carrier, and not entirely. disconnected from his operations, with which neither he nor his servants has anything to do, to the extent that the initial burden of proof is upon the plaintiff of bringing the source of the injury home to the carrier by evidence.157 The conclusion then is that, in order to throw upon the carrier of passengers the burden of disproving his negligence, in case of an injury to a passenger, it must first be shown that the injury complained of resulted from the breaking of the carrier's machinery, from a collision, from a derailment of his cars, or from something otherwise improper or unsafe in his appliances of transportation, or in the conduct of his business.158 § 2758. An Approved Judicial Statement of this Presumption.-In a case in Pennsylvania the following summary by the judge who presided at the trial, of the measure of the carrier's duty and liability, was highly commended: "Where, for a consideration, a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract upon the part of the company that it has, for that purpose, provided a safe and sufficient road, and that its cars are sound and roadworthy. Where the passenger is injured by any accident arising from a collision or defect in machinery, he is required, in the first place, to prove no more than the fact of the accident and the extent of his injury. A prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence. In the case trying, the legal presumption is that the injuries to the plaintiff are caused by the negligence of the defendant, and this presumption continues until a countervailing presumption of fact is established. This prima facie presumption may be over the presumption does not arise, but the plaintiff must show by further evidence that the injury proceeded from something which the carrier or his servants ought to have anticipated and provided against. 416; 30 W. N. C. (Pa.) 9; 23 Atl. Rep. 989. An imperfect statement of the same doctrine is that where, in an action against a railway carrier, it affirmatively appears that the damage complained of was not 15 This section is cited in §§ 2840, caused either "by the running of the 2907, 3011, 3479, 3557. 157 Pennsylvania R. Co. v. MacKinney, 124 Pa. St. 462; s. c. 2 L. R. A. 820; 46 Phila. Leg. Int. 301; 20 Pitts. L. J. (N. S.) 2; 23 W. N. C. (Pa.) 353; 17 Atl. Rep. 14. 158 Thomas v. Philadelphia &c. R. Co., 148 Pa. St. 180; s. c. 15 L. R. A. locomotives or cars, or other machinery of such company." or by some person in its employment and service, it is erroneous to charge that a presumption of negligence arose against the company: Savannah &c. R. Co. v. Flaherty, 110 Ga 335; s. c. 35 S. E. Rep. 677. f thrown by proof to the satisfaction of the jury that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide."152 § 2759. This Presumption Arises from Accident to Carrier's Vehicle. 160-The most usual application of this rule is in the case of the breaking down of the carrier's means of transportation; and in this application the rule is that where the cause of the injury to the passenger arises from apparatus wholly under the control of the carrier and furnished and applied by him, an inference of negligence on his part is raised; and the mere fact that the defective condition was not observed or apparent, may not be sufficient effectually to dispel it, if there were means available, by careful examination or practical tests, to discover the cause of the infirmity.161 § 2760. This Presumption Arises where Injury Proceeds from Carrier's Servant.-The same presumption arises where an injury proceeds from an act or omission of the servants of the carrier, and operates to shift the burden upon the carrier, as where the injury happened upon a steamboat from the falling of a bale of cotton upon a passenger.162 § 2761. Illustrations of this Presumption.-To state cases in illustration of this rule:-A passenger is injured in consequence of a stage breaking down,163 or overturning;104 or of a horse hitched to an omni 159 Philadelphia &c. R. Co. v. Anderson, 94 Pa. St. 351, 357. 160 This section is cited in § 3485. 161 Miller v. Ocean Steamship Co., 118 N. Y. 199; s. c. 28 N. Y. St. Rep. 874; 23 N. E. Rep. 462. The author will not cumulate authorities to this proposition; since nearly all the authorities concur in support of it, as shown by the array of decisions cited in a preceding section: Ante, § 2754. The Supreme Court of Texas have held that a presumption of negligence on the part of a railroad company is not raised by the fact that a train is thrown from the track, and a passenger injured thereby, and that it is error so to instruct the jury, because such an instruction invades their province: San Antonio &c. R. Co. v. Robinson, 73 Tex. 277; s. c. 11 S. W. Rep. 327. The decision is so plainly opposed to principle and authority, that it ought not to receive any considera tion outside the State in which it was pronounced. 102 Memphis &c. Packet Co. v. McCool, 83 Ind. 392; s. c. 8 Am. & Eng. Rail. Cas. 390. The court held that there is no distinction, in respect of this presumption, between the happening of an injury through a failure or defect in the carrier's means of transportation and through an act of his servants: Memphis &c. Packet Co. v. McCool, supra. 163 Christie v. Griggs, 2 Camp. 79; s. c. Thomp. Carr. Pass. 181; Ware v. Gay, 11 Pick. (Mass.) 106. 164 Farish v. Reigle, 11 Gratt. (Va.) 697; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; s. c. Thomp. Carr. Pass. 183; aff'g s. c. sub nom. Saltonstall v. Stockton, Taney's Dec. 11; McKinney v. Neil, 1 McLean (U. S.) 540; Stockton v. Frey, 4 Gill (Md.) 406; Fairchild v. California Stage Co., 13 Cal. 599. bus kicking through a front panel of the vehicle;165 or of the horses. starting up while the passenger is alighting;166 or of an embankment of the railway giving way;167 or of a train running off the track,168 or colliding with another train,169 or with an object projecting from a car of a train of the carrier coming from an opposite direction upon another track of the defendant,170 or breaking down ;171 or of the boiler of a steam vessel172 or of a railway locomotive173 exploding; or of some unknown substance striking the car, injuring the passenger;174 or of a female passenger, standing up in a Pullman car, receiving a fall in consequence of other cars being shunted against this car in switching." In all these cases, the mere fact that the accident happened under the circumstances named was held to create a presumption of negligence against the carrier, which he must overcome by evidence on his part, or suffer a judgment for damages. 175 165 Simson v. London &c. Omnibus Co., L. R. 8 C. P. 390; s. c. 42 L., J. (C. P.) 112; 21 Week. Rep. 595; 28 L. T. (N. S.) 550. 166 Roberts v. Johnson, 58 N. Y. 613; aff'g s. c. 5 Jones & Sp. (N. Y.) 157. 167 Great Western R. Co. v. Braid, 1 Moo. P. C. C. (N. S.) 101; s. c. 9 Jur. (N. S.) 339; 11 Week. Rep. 444; Brehm v. Great Western R. Co., 34 Barb. (N. Y.) 256. Contra, Withers v. North Kent R. Co., 27 L. J. (Exch.) 417; s. c. at nisi prius, sub nom. Kent v. Great Northern R. Co., 1 Fost. & Fin. 165. 168 Carpue v. London &c. R. Co., 5 Q. B. 749, per Lord Denman, C. J., at nisi prius; Sullivan v. Philadelphia &c. R. Co., 30 Pa. St. 234; Pittsburgh &c. R. Co. v. Thompson, 56 Ill. 138; s. c. 4 Chic. Leg. N. 9; Yonge v. Kinney, 28 Ga. 111; Edgerton v. New York &c. R. Co., 35 Barb. (N. Y.) 389; Zemp v. Railroad Co., 9 Rich. L. (S. C.) 84; Dawson v. Manchester &c. R. Co., 7 Hurl. & N. 1037; s. c. 21 S. W. Rep. 1010; Ohio &c. R. Co. v. Voight, 122 Ind. 288; s. c. 23 N. E. Rep. 774; Pattee v. Chicago &c. R. Co., 5 Dak. Ter. 267; s. c. 38 N. W. Rep. 435; George v. St. Louis &c. R. Co., 34 Ark. 613, 624; Eureka Springs v. Timmons, 51 Ark. 459; s. c. 11 S. W. Rep. 327; San Antonio &c. R. Co. v. Robinson, 73 Tex. 277; Philadelphia &c. R. Co. v. Anderson, 94 Pa. St. 351; s. c. 39 Am. Rep. 787 (derailment, caused by the washing away of a railway embankment, in consequence of insufficient drain VOL. 3 THOMP. NEG.-15 age); Bonner v. Grumbach, 2 Tex. Civ. App. 482; s. c. 21 S. W. Rep. 1010 (car overturned while on a bridge, near a bay, falling into the water, so that passenger lost his money, which was in his coat lying on the seat occupied by him); Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 890 (presumption arises from breaking of rail); Hipsley v. Kansas City &c. R. Co., 88 Mo. 348; s. c. 4 West. Rep. 45 (derailment of train, presumption arises); Denver &c. R. Co. v. Woodward, 4 Colo. 1 (car overturned, presumption arises). Contra, Bird v. Great Northern R. Co., 28 L. J. (Exch.) 3. 109 Skinner v. London &c. R. Co., L. R. 5 Exch. 786; s..c. 2 Eng. Law & Eq. 360; 15 Jur. 299; New Orleans &c. R. Co. v. Allbritton, 38 Miss. 242, 274; Union &c. R. Co. v. Harris, 158 U. S. 326; s. c. 39 L. ed. 1003; aff'g s. c. 12 C. C. A. 598; 63 Fed. Rep. 800. 170 Walker v. Erie R. Co., 63 Barb. (N. Y.) 260. 171 Meier v. Pennsylvania R. Co., 64 Pa. St. 225; Toledo &c. R. Co. v. Beggs, 85 III. 80. 172 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, 293; Dunlap v. Steamboat Reliance, 2 Fed. Rep. 249. 173 Robinson v. New York &c. R. Co., 9 Fed. Rep. 877. 174 Holbrook v. Utica &c. R. Co., 16 Barb. (N. Y.) 113; s. c. aff'd 12 N. Y. 236. 175 Railroad Co. v. Pollard, 22 Wall. (U. S.) 341. 225 |