§ 2766. Nor where the Injury Proceeds from the "Act of God."198 Some of the courts have attempted to raise an exception to the rule in cases where the injury to the passenger train proceeds from something which has been described in the books of the law as "the act of God." This "act of God" is something of a rather vague character, but it may be supposed to include anything that proceeds from storm or flood, of such an extraordinary character as is not to be anticipated or provided against, even by the exercise of the extreme care and diligence which the law puts upon a carrier of passengers. In one case the sliding of an embankment, part of a natural hill, which had been left by a railroad company in excavating its roadbed, whereby a passenger train was wrecked and a postal clerk riding thereon was killed, was ascribed to the "act of God."199 And the conclusion was that the fact of an accident proceeding from such a source did not raise any presumption of negligence which the carrier was bound to rebut, but that the burden rested upon the plaintiff to show, outside of the fact of the landslide, and the wrecking of the train, that the carrier had been negligent. The decision is really foolish. It turns completely upside down the legal proposition that an accident to the carrier's means of transit raises a presumption of negligence. The presumption arises from the fact of such an accident, and then it is for the carrier and not for the passenger to explain it, so as to make it consistent with the exercise of the high degree of care which the law puts upon the carrier. If the decision under consideration is correct, then railway companies, in excavating through hills for their roadbeds, are under no obligation of moving superincumbent masses of earth, but are entitled to let them remain in their natural position, no matter how great a menace they may be to the safety of their trains, trusting in God that they will not fall, and ascribing their fall to the have held that no presumption of negligence on the part of a railroad company arises from an injury to a passenger through the falling of a rock upon its passenger train, which became detached from its natural position in the hillside, more than 300 feet from the cut through which the railroad ran: Fleming v. Pittsburg &c. R. Co., 158 Pa. St. 130; s. c. 22 L. R. A. 351; 33 W. N. C. (Pa.) 212; 24 Pitts. L. J. (N. S.) 138; 27 Atl. Rep. 858. The decision is unsatisfactory. It is the duty of every railroad company to inspect and police its roadway, with the view of keeping it safe from rocks which may become detached and roll down upon its track, in mountainous countries; and it will make no difference if the rock in its original position were a mile away, provided the mountain were high enough and steep enough to make it a menace to the safety of the railroad track. The usual presumption ought to arise in such a case, and it ought to be for a jury to say whether or not it should apply. 198 This section is cited in § 2721. 199 Gleeson v. Virginia &c. R. Co., 5 Mackey (D. C.) 356; s. c. 5 Cent. Rep. 440. "act of God" when it takes place, instead of ascribing it to their own negligence.200 § 2767. Nor where the Injury Proceeds from the Act of Another Passenger or Other Third Person.-4. Nor does the foregoing rule apply where the evidence adduced on the part of the plaintiff shows that the injury resulted from the act of a third person outside the vehicle of the carrier and over whom he had no control. In such a case, the mere fact of such injury does not create a presumption of negligence on the part of the company, such as to shift the burden of proof on the company to excuse itself, but the burden remains on the passenger to go further, and (in some jurisdictions201) to show that he was not guilty of contributory negligence, and also to exhibit circumstances which raise an inference that the injury to him may have resulted from the negligence of the company.202 On the other hand, 200 This miserable decision contains the reasoning that although the defendant may have been guilty of negligence in not adopting a different mode of construction, or in not providing against such a casualty, yet such negligence contributed remotely, the proximate cause of the catastrophe being the "act of God:" Gleeson v. Virginia &c. R. Co., 5 Mackey (D. C.) 356; s. c. 5 Cent. Rep. 440. In other words, although the railroad company may have been guilty of negligence in not removing the superincumbent mass of earth, which might be detached by the water absorbed by it from the stream, yet if it should become detached by natural causes and slide down, wrecking one of its passenger trains, its negligence was not the proximate cause of the accident, but God was the proximate cause of it. The climax of this wretched travesty of a judicial decision is capped when the court advances the proposition that in providing against "acts of God," only ordinary care and diligence are required of a common carrier of passengers: Gleeson v. Virginia &c. R. Co., supra. Applied to the case in judgment, the meaning was that all that the law requires of a railroad company with respect to leaving a superincumbent mass of earth above its track, which can be detached by the water soaking into it during a storm, causing a landslide, which may wreck a passenger train, and sacrifice many lives, is what is termed ordinary care and diligence, instead of the high and exact care which the policy of the law imposes on such a carrier for the safety of passengers. The Supreme Court of Kansas, dealing with a similar question, have kept the presumption under consideration right side up-if such an expression may be used-by holding that, in an action by a passenger against a carrier to recover for personal injuries received while travelling in a conveyance of the latter. where the evidence introduced by the plaintiff shows that the accident resulted from an act of God, unavoidable casualty, or from causes not connected with the construction. operation, or maintenance of the railway, there is no burden on the carrier to free itself from a presumption of negligence: St. Louis &c. R. Co. v. Burrows (Kan.), 61 Pac. Rep. 439. In other words, where the plaintiff's own evidence shows a concrete case, which negatives the presumption of law under consideration, or which prevents a presumption from arising, then, in accordance with principles already discussed (ante, § 2756), he must go further and show that there was actual negligence, or negligence in fact, on the part of the railroad company. 201 Vol. I, § 365. 202 Thus, a passenger on a street car was struck and injured by a where the evidence shows that the efficient cause of the accident was the intervening act of a passenger or other third person, but for which it would not have happened, the carrier, as a general rule, is not liable at all, unless the intervening act of the passenger or third person was one which, under the circumstances, the carrier, in the excrcise of the high degree of care which the law puts upon him, should have anticipated and guarded against. Thus, while a railway company is liable to a passenger for failing to bring its train to a full stop at the passenger's destination, and to allow him a reasonable time in which to alight, yet where, before its train has come to a stop, another passenger pulls the bell rope, causing it to acquire speed again, and the passenger seeking to alight is aware of such action. and its effect, but nevertheless attempts to alight and is injured in doing so, the company is not liable to him in damages,203 Nor is the company liable in damages to a passenger who is injured by being jostled off the step of one of its cars while alighting, by the rudeness of another passenger who is hurrying into the car. So if, after the passenger has alighted in safety from the vehicle of the carrier, the passenger is run against by one of his fellow passengers and thrown under the train and thereby injured, this fact itself will not render the carrier liable in damages;205 though, as already seen, the conclusion will be different where the passenger is jostled by a hurrying crowd of passengers from a platform or passage-way too narrow for the purpose intended.206 So, also, where a passenger receives an injury while attempting to board a train, in consequence of being crowded from the platform by another passenger, who has also attempted to board the same car, the railroad company will not be liable, unless the company was guilty of some negligence which, combined with that. of such third person, operated as a sufficient cause in producing the injury.207 204 § 2768. Further of this Exception.-So, an elevated railroad company is not liable for an injury received by a passenger immediately after alighting, by having her foot stepped on in a crowd of people, passing load of hay. It was held that, to make the company liable, he must prove not only that he was without fault, but that the company was negligent. The mere happening of such an accident did not raise a presumption of negligence against the company: Federal Street &c. R. Co. v. Gibson, 96 Pa. St. 83; s. c. 11 Reporter 443. 20 Mississippi &c. R. Co. v. Harrison, 66 Miss. 419; s. c. 6 South. where there was no sign of approaching danger and it could not have been averted.208 So, if a passenger on a street railway is pulled or pushed off the car by other passengers under such circumstances that the company would not be liable in damages but for the fact that the passenger had been surprised or excited and bewildered by the negligence of the company, this latter fact, it has been doubtfully held, does not render the company liable.200 So, while a common carrier of passengers is under the duty of enforcing reasonable police regulations, so to speak, on its vehicles, to protect passengers against other passengers behaving themselves improperly, yet it is quite clear that such a carrier is not liable for an injury happening to a passenger in consequence of the unusual, rude or hasty act of a stranger in rushing through the door, while hurrying to take a train, thereby striking a person on the other side of the door; since such an act would not be reasonably anticipated.210 So, where a stranger committed the criminal act of letting off the brakes of certain loaded cars standing on a switch, and closing the switch, which had been left open to derail the cars if they got loose, whereby the cars ran down a grade and out on the main track, causing a collision, and no negligence was imputed to the railway company in failing to anticipate or discover the mischief and prevent its effect, it was held that the company was not liable.211 § 2769. Nor where Cause of Accident is not Susceptible of Proof.It follows that the rule has no application where the cause of the accident is so obscure that it can not be fairly discovered from the evidence whether it was due to the negligence of the carrier, or to the negligence of the passenger, or to some accident without any fault on the part of either. When, therefore, a person on an excursion train, running rapidly in a dark night, where there were frequent and sharp turns, was seen about the middle of the train going toward the rear, and next morning his dead body was found on the track; and a saloon car not intended for use, but having persons in it, was attached for transportation to the rear of the train, with a vacant space of about one and one-half feet between it and the next car; and it was alleged that this was negligence on the part of the railroad company, and that he probably fell through this space,-it was held that the company was not liable, on an indictment for negligence 208 Thomson v. Manhattan R. Co., 75 Hun (N. Y.) 548; s. c. 59 N. Y. St. Rep. 621; 27 N. Y. Supp. 608. 200 Joliet Street R. Co. v. McCarthy, 42 Ill. App. 49. 210 Graeff v. Philadelphia &c. R. Co., 161 Pa. St. 230; s. c. 23 L. R. A. 606; 34 W. N. C. (Pa.) 384; 25 Pitts. L. J. (N. S.) 37; 28 Atl. Rep. 1107. 211 Fredericks v. Northern &c. R. Co., 157 Pa. St. 103; s. c. 27 Atl. Rep. 689; 22 L. R. A. 306. in causing his death, there being no proof as to the manner or circumstances of his death, or what care he was exercising, or what reason he had for going to the saloon car, if he did attempt to go there.2 212 § 2770. Burden of Rebutting this Presumption Rests on the Carrier.213-It is the essential nature of this presumption that it stands in the place of actual proof of negligence, until it is rebutted and overthrown.214 This presumption would not be a presumption-would not have any evidentiary value for the purpose of influencing the practical result of a trial-unless the court were allowed to explain it to the jury.215 The nature of the presumption is such that, unless rebutted to the satisfaction of the jury, it decides the case in favor of the plaintiff, upon his making proof of the damages sustained; or, to say the least, it takes the question of the negligence of the carrier to the jury. If there is no countervailing evidence-nothing to explain the accident consistently with due care on the part of the defendant, the plaintiff is plainly, by force of this presumption, entitled to a verdict, and no sound reason is perceived why the judge should not be allowed so to instruct the jury. The burden of overcoming this presumption is upon the carrier,216 and upon the plainest and most elementary principles with reference to trial by jury, it is for the jury, subject, of course, to the corrective power of the court in granting a new trial,-to say whether or not this burden has been overcome. There is no rule of law which obliges them to believe the evidence adduced by the defendant, generally delivered through the mouths of his servants interested in testifying in his behalf so as to keep their position; and the conduct of judges in New York, in deciding, as they have done in many cases, that this presumption has been overcome, involves a complete invasion of the province of the jury, or 212 State v. Maine &c. R. Co., 81 Me. 84; s. c. 16 Atl. Rep. 368. Compare Buesching v. St. Louis Gas Light Co., 73 Mo. 219. 213 This section is cited in § 3526. 214 Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 895; Union &c. R. Co. v. Harris, 158 U. S. 326; s. c. 39 L. ed. 1003; 15 Sup. Ct. Rep. 843; aff'g s. c. 12 C. C. A. 598; 63 Fed. Rep. 800 (cars on side track not securely fastened to prevent them from moving upon main track, causing collision with a passenger train). invades their province: San Antonio &c. R. Co. v. Robinson, 73 Tex. 277; s. c. 11 S. W. Rep. 327. Contra, Eureka Springs R. Co. v. Timmons, 51 Ark. 459; s. c. 11 S. W. Rep. 690. 216 Louisville &c. R. Co. v. Snider, 117 Ind. 435; s. c. 20 N. E. Rep. 284; 3 L. R. A. 434; Graham v. Burlington &c. R. Co., 39 Minn. 81; s. c. 38 N. W. Rep. 812; Louisville &c. R. Co. v. Jones, 83 Ala. 376; s. c. 3 South. Rep. 902; Augusta &c. R. Co. v. Randall, 79 Ga. 304; s. c. 4 S. E. Rep. 674; Central Passenger R. Co. v. Kuhn, 86 Ky. 578; s. c. 6 S. W. Rep. 441; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. 215 It was therefore a gross aberration to hold, as one court did, that for the judge to instruct the jury as Rep. 895. to the nature of this presumption |