So, where the accident was shown to have happened from the explosion of a lamp in an omnibus, it was held that the burden lay on the defendant to show that the burning-fluid, or other material used in the lamp, was a safe and proper article.176 So, where the plaintiff proves that the defendant's coach in which he was riding was driven at a moderate rate of speed upon a plain and good, level road, and that, coming in contact with another object, one of the wheels came off and the coach overturned, whereby the plaintiff was hurt, the law would imply negligence from these facts; for it would be a reasonable conclusion from them that the stagecoach was not properly fitted and provided. Then the burden of proof would change, and it would be for the defendant to rebut this legal inference.177

§ 2762. Further Illustrations.-So, where a passenger was injured while in a car by the falling of a porcelain shade, prima facie evidence of negligence was discovered in the fact that the railroad company placed and used the shade in the car. 178 So, where the evidence was that the car in which the passenger was seated was thrown from the track and crushed, and that, after the accident, it was found that there was a broken rail, it was held that the court should have charged the jury that they might infer negligence from these facts, and that thereby the burden of excusing the negligence was shifted to the defendant." 179 So where a passenger on board a steamboat, which was in motion, was seated in the water-closet in front of one of the wheels with his back towards the wheel, which was separated from him by a thin partition, and a sudden breakage of the wheel occurred, and its fragments were dashed through the partition, so that the plaintiff was struck on the back with great force and injured, -there was, prima facie, a case of negligence against the defendants, which they could rebut only by showing that, notwithstanding the breaking of the wheel, it was "free from any defect which the utmost vigilance, aided by the highest skill, could discover and prevent."180 So, the doctrine of a presumption of negligence from the happening of the accident has been applied in a case where a passenger was precipitated into the water through the giving way of the stage-plank which had been laid for passengers to walk upon from the steamboat to the wharf.181 So, where a passenger was hurt by the explosion of the boiler of the carrier's locomotive, and the jury was instructed

176 Wilkie v. Bolster, 3 E. D. Smith (N. Y.) 327.

177 Ware v. Gay, 11 Pick. (Mass.) 106.

178 White v. Boston &c. R. Co., 144 Mass. 404; s. c. 11 N. E. Rep. 552.

179 George v. St. Louis &c. R. Co., 34 Ark. 613, 624.

180 Yerkes v. Keokuk &c. Packet Co., 7 Mo. App. 265.

181 Eagle Packet Co. v. Defries, 94 Ill. 598.

that they might infer negligence upon the theory that the explosion would not have taken place unless the boiler had been in a defective condition, and unless there had been some omission or mismanagement on the part of those having charge of it at the time,-it was held that this instruction was not subject to criticism, the court saying: "It is elementary that, in actions for negligence, if the plaintiff proves that he has been injured by an act of the defendant, of such a nature that, in similar cases, where due care has been taken, no injury is known to ensue, it raises a presumption against the defendant, which the latter must rebut."

99182

§ 2763. No such Presumption where the Defect is Equally Known to the Passenger and the Carrier.-The courts have admitted several exceptions to the foregoing rule, which will now be stated: 1. It does not apply where the defect, deficiency, or peculiarity in the carrier's means of transportation or accommodation, which was the occasion of the accident, was visible to, seen by, or known to the passenger, as well as to the carrier, and where the accident took place either before the actual commencement of the transit or after its termination, and while the passenger was in the affirmative act of boarding the carrier's vehicle, or alighting therefrom, or coming upon or passing from the grounds of the carrier,-in all of which cases. the carrier is not the exclusive bailee of the passenger, but the passenger is required, under the principles of the law, to take reasonable care for his own safety. This may be well illustrated by a case in Massachusetts, already quoted in other connections. There, the flap of a ferryboat was not of the most convenient pattern; it did not unite with the surface of the dock on a level, but made a jog. A passenger attempted to drive off with his horses and sled. His sled struck the jog, and stopped with a sudden jerk, which threw the load forward upon him and injured him. Here it was held that the mere fact that the accident happened under the circumstances stated did not make out a case against the ferry company; and the reasons for this conclusion are well set forth in the opinion of the court by Colt, J.:188 "The plaintiff further asked the court to rule that, having proved due care on his part, and the occurrence of the accident, the law would imply negligence on the part of the defendants, and cast upon them the burden of proving that the accident happened without their fault. We think such instruction would have been erroneous, as applied to the case as presented upon the pleadings and evidence. The declaration alleges that the negligence of the defendants consisted in not providing

182 Robinson v. New York &c. R. Co., 9 Fed. Rep. 877, per Wallace, J.

183 Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312, 316.

safe exit for the plaintiff with his loaded wagon from their ferryboat, so that in attempting to pass off the boat the wheels of the wagon struck violently against the drop of the ferry and threw the load upon the plaintiff, causing the injury complained of. The general rule that the plaintiff, in actions of this description, is bound to prove negligence on the part of the defendants as the cause of the injury, has been apparently modified in a class of cases in which it is said that proof of due care on the part of the plaintiff, with proof of the accident, is prima facie evidence of negligence on the part of the defendants. An examination of these cases, we think, will show that there is in them no real invasion of the general rule as to the burden of proof. It will be found, we believe, in all of them, that the nature of the accident was such, or the attending circumstances such, that proof of the accident alone raised a presumption of negligence, and that the same evidence which proved the injury done, also proved the defendant's negligence, or developed circumstances from which it must be presumed. Thus, in Carpue v. London and Brighton Railway,184 where the injury was caused by a train running off the track and overturning the carriage in which the plaintiff was a passenger, Denman, C. J., told the jury that, it having been shown that the exclusive management of the machinery and the railway was in the hands of the defendants, it was presumable that the accident arose from their want of care, unless they gave some explanation of the cause.' So, in Stokes v. Saltonstall,185 the injury was occasioned by the overturning of a stagecoach; and in Ware v. Gay,186 the accident was of a similar nature, occasioned by the running off of the wheel of the coach in which the plaintiff was a passenger. In these cases clearly the nature of the accident afforded proof of the defendants' negligence. The plaintiff, in proving his injury, must ordinarily prove the nature of the accident and the circumstances; and when such proof has any tendency to prove negligence, and especially when the defendant has exclusively the means of knowledge within his control as to what caused the injury, it is said the burden is cast upon the defendant to explain the cause and exculpate himself. Upon recurring to the facts in this case, it appears that this accident might have happened without negligence on the part of the defendants, and that the means of knowledge as to the cause of the injury were equally within the reach of both parties. The court therefore rightly declined to give the instructions asked for upon this point, and for the reasons stated; the instruc

184 5 Ad. & El. (N. S.) 747.

185 13 Pet. (U. S.) 181.

180 11 Pick. (Mass.) 106.

tions which were given were sufficiently favorable to the plaintiff." It may also be illustrated by an accident happening to a passenger on a ferryboat, through the slippery condition of the deck, caused by an existing storm, the condition of the deck being known to the passenger, as well as to the carrier. Here it was held that the presumption of negligence under discussion did not arise, but that the passenger must affirmatively show negligence by something beyond the fact of the accident.187

§ 2764. Nor where the Accident Proceeds in Part from a Voluntary Movement on the Part of the Passenger.-2. Nor does the foregoing rule apply where the occasion of the hurt of the passenger was an active voluntary movement on his part, combined with some alleged deficiency in the carrier's means of transportation or accommodation; and the reason is that in such cases it is necessary to consider whether there may not have been contributory negligence on the part of a passenger. It is only in respect of those accidents which happen to the passenger while he passively trusts himself to the safety of the carrier's means of transportation, or to the skill, diligence, and care of his servants, that the rule applies. To illustrate this, let us consider two cases side by side. A passenger is seated in a railway coach, and the train being in motion, the coach comes in contact with some unknown substance, injuring the passenger. The happening of such an accident is prima facie evidence of negligence on the part of the carrier. 288 But where an accident happened to the passenger in consequence of his having thrust his arm out of the window, so that it came in contact with some substance which the train was passing, this would not be so.189 And the same rule was declared where the passenger fell in leaving the car, and passed under the wheels and was killed;190 and where the passenger, in consequence of a voluntary movement. made by him, had his hand caught in a door and injured.191 So, where a baggage master, while attending to his duties, in his ordinary place and manner, and having no knowledge of the presence of the passenger, stepped backward in the act of receiving an article from a car, the motion of his foot being natural and necessary to sustain his body, and the passenger, having ample room to pass without hin

187 Fearn v. West Jersey Ferry Co., 143 Pa. St. 122; s. c. 13 L. R. A. 366; 48 Phila. Leg. Int. 466; 28 W. N. C. (Pa.) 544; 22 Pitts. L. J. (N. S.) 196; 22 Atl. Rep. 708.

188 Holbrook v. Utica &c. R. Co., 16

Barb. (N. Y.) 113; s. c. aff'd 12 N. Y. 236.

189 Post, § 2972, et seq.

190 Railroad Co. v. Mitchell, 11 Heisk. (Tenn.) 400.

191 Metropolitan R. Co. v. Jackson, L. R. 3 App. Cas. 193.

drance, tripped over his foot and fell,—the railroad company was not liable.192

$2765. Nor where the Accident Proceeds from Something Wholly Disconnected from the Business of the Carrier and which he is not Bound to Provide against.-3. Nor does the foregoing rule apply where the plaintiff's evidence shows that the accident was caused by something so wholly disconnected from the operation of the carrier's business as not to involve the safety or sufficiency of his instrumentalities, or the negligence of his servants. This was conceded by the court in the case of the Kansas Pacific Railway Company v. Miller,193 and is intelligently stated and explained by Selden, J., in Curtis v. Rochester and Syracuse Railroad Company.194 The obvious correctness of this rule may be seen from one or two illustrations of it: While a railway train is in motion, a passenger is struck by a gunshot fired from without; a malicious person suddenly places an obstruction upon a railway track in front of the train, or misplaces a switch in the night,195 whereby the train is thrown from the track and a passenger injured; a ship is fired upon by a piratical craft and sunk, and a passenger drowned; a railway passenger train, proceeding with due care upon a level and safe track, is overthrown by the violence of a tornado.196 It is only necessary to suggest these cases to enforce the conclusion that in the absence of other evidence, showing negligence on the part of the carrier, no presumption would be raised which would shift the burden of proof upon him. And the reason is that the so-called presumption of negligence arising from the mere happening of the accident is not a presumption of law, but a presumption of fact, and it is not the less a presumption of fact because it is drawn by the judge from the facts in proof, and not by the jury. It is a conclusion to be drawn from the existence of certain evidential facts, and this conclusion will be drawn accordingly as the facts are or are not sufficient to warrant it; and when the question arises whether the conclusion is to be drawn or not, it is solved by precisely the same principle which solves the question under what circumstances negligence is a question for the judge, and under what a question for the jury. In those cases, if the facts in evidence are such that no reasonable man can draw from them a conclusion that the defendant has been negligent, the judge nonsuits the plaintiff.197

192 Connor v. Concord &c. R. Co., 67 N. H. 311; s. c. 30 Atl. Rep. 1121. 193 2 Colo. 442, 458.

194 18 N. Y. 534; s. c. Thomp. Carr. Pass. 188. See also Deyo v. New York &c. R. Co., 34 N. Y. 9.

195 Latch v. Rumner R. Co., 27 L. J. (Exch.) 155.

190

McClary v. Sioux City &c. R. Co., 3 Neb. 44.

197 In conformity with this idea. the Supreme Court of Pennsylvania