1

means of transportation,362 applies in cases where a passenger train or car runs off the track; the mere fact of the train becoming derailed raises an inference of negligence against the railroad company, which it must rebut, or pay damages to the passengers who have been injured.363 Carrying out this principle, it has been held, in such an action, error to instruct the jury that "there is no presumption that the rail was broken before this train reached it; and if the plaintiff claims that it was, the burden of proof is upon him." This instruction ignores and reverses the principle above stated, by making it incumbent upon the injured person to establish, by proof, the facts which constitute the negligence complained of. This he is not bound to do.36 This presumption arises where a train or a car is thrown from the track by a broken rail, as well as where the derailment proceeds from any other cause. 365 Where an injury to a passenger is shown, resulting from a derailment of the train or the car in which he is riding, the presumption of negligence which arises upon proof

362 Ante, § 2754.

363 Curtis v. Rochester &c. R. Co., 18 N. Y. 534; Edgerton v. New York &c. R. Co., 39 N. Y. 227; Seital v. Middlesex &c. R. Co., 109 Mass. 398; Sherlock v. Alling, 44 Ind. 184 (collision between vessels); Pittsburgh &c. R. Co. v. Williams, 74 Ind. 462; Cleveland &c. R. Co. v. Newell, 75 Ind. 542. See also Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Pittsburgh &c. R. Co. v. Thompson, 56 Ill. 138; Sullivan v. Philadelphia &c. R. Co., 30 Pa. St. 234; Baltimore &c. R. Co. v. Worthington, 21 Md. 275; Yonge v. Kinney, 28 Ga. 1; Zemp v. Railroad Co., 9 Rich. L. (S. C.) 84; New Orleans &c. R. Co. v. Allbritton, 38 Miss. 242; Higgins v. Hannibal &c. R. Co., 36 Mo. 418; Furnish v. Missouri &c. Co., 102 Mo. 438; s. c. 13 S. W. Rep. 1044; Alabama &c. R. Co. v. Hill, 93 Ala. 514; s. c. 47 Am. & Eng. Rail. Cas. '500; 9 South. Rep. 722; Wabash &c. R. Co. v. Friedman, 41 Ill. App. 270; s. c. rev'd on other grounds in 30 N. E. Rep. 353; Hipsley v. Kansas City &c. R. Co., 88 Mo. 348; s. c. 4 West. Rep. 45; Dimmitt v. Hannibal &c. R. Co., 40 Mo. App. 654; Norton v. St. Louis &c. R. Co., 40 Mo. App. 642; Montgomery &c. R. Co. v. Mallette, 92 Ala. 209; s. c. 9 South. Rep. 363; Southern &c. R. Co. v. Walsh, 45 Kan. 653; s. c. 26 Pac. Rep. 45; Fordyce v. Withers, 1 Tex. Civ. App. 540; s. c. 20 S. W. Rep. 766; Meador

v. Missouri &c. R. Co. (Kan.), 61 Pac. Rep. 442; Louisville &c. R. Co. v. Jones, 108 Ind. 551; s. c. 7 West. Rep. 33; Atchison &c. R. Co. v. Elder, 57 Kan. 312; s. c. 46 Pac. Rep. 310; Chicago &c. R. Co. v. Zernecke, 59 Neb. 689; s. c. 82 N. W. Rep. 26 (under a statute); St. Louis &c. R. Co. v. Mitchell, 57 Ark. 418; s. c. 21 S. W. Rep. 883; Pershing v. Chicago &c. R. Co., 71 Iowa 561; s. c. 32 N. W. Rep. 488; Eldridge v. Minneapolis &c. R. Co., 32 Minn. 253; Albion Lumber Co. v. De Nobra, 44 U. S. App. 347; s. c. 19 C. C. A. 168; 3 Am. & Eng. Rail. Cas. (N. S.) 564; 72 Fed. Rep. 739; Chicago &c. R. Co. v. Grimm, 25 Ind. App. 494; s. c. 57 N. E. Rep. 640; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 890; Denver &c. R. Co. v. Woodward, 4 Colo. 1; Chesapeake &c. R. Co. v. Howard, 14 App. (D. C.) 262; Louisville &c. R. Co. v. Miller, 141 Ind. 533; s. c. 37 N. E. Rep. 343. In Texas it is laid down that a presumption of negligence, as matter of law, does not arise from the fact of a derailment of a train and of a consequent injury to a passenger riding thereon: Texas &c. R. Co. v. Buckalew, 3 Tex. Civ. App. 272; s. c. 22 S. W. Rep. 994.

304 Cleveland &c. R. Co. v. Newell, 75 Ind. 542.

365 Post, $2811; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 890,

of these facts can only be rebutted by showing either that the accident. was in fact due to the contributory negligence of the passenger, or that it was inevitable, and that it proceeded from something against which no human prudence or foresight on the part of the company could provide.366

§ 2810. Further of the Presumption of Negligence from the Fact of Derailment.867-Where a passenger is injured by the derailment of a train, he is only required to show that he was injured without fault. on his part; the law then presumes negligence upon the part of the carrier, and it devolves upon the carrier to remove such presumption. 368 An accurate statement of the rule seems to be that the fact of such an accident raises a prima facie presumption of negligence, which the railway company has the burden of overcoming, by clear and explicit proof that the accident could not have been avoided by the utmost practicable care and diligence.369

366 Atchison &c. R. Co. v. Elder, 57 Kan. 312; s. c. 46 Pac. Rep. 310; Meador v. Missouri &c. R. Co., 62 Kan. 865; s. c. 61 Pac. Rep. 442. To the same effect, see Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 893.

3485.

gauge railroad had been forced out of its place by a defective switch, either in consequence of the rail being too short, or from the clamp of the main switch bar being too close to the end of the rail, or from both these causes combined; nor could the

This section is cited in §§ 2827, defendant rebut the presumption by

3 Chicago &c. R. Co. v. Grimm, 25 Ind. App. 494; s. c. 57 N. E. Rep. 640. It has been said that the presumption can only be overcome by evidence that the casualty was the result of an inevitable or unavoidable accident: Louisville &c. R. Co. v. Jones, 108 Ind. 551; s. c. 7 West. Rep. 33; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 54 Am. Rep. 312. But this statement seems to go beyond the true rule, since it would have the effect of making the railway company an insurer, which we have seen it is not: Ante, § 2721.

309 Louisville &c. R. Co. v. Miller, 141 Ind. 533; s. c. 37 N. E. Rep. 343. This presumption of negligence is not overcome where there is no evidence of an inspection of the track or of the car by a competent or proper person, and where it is not made to appear by the defendant that both the track and the car were in good condition: St. Louis &c. R. Co. v. Mitchell, 57 Ark. 418; s. c. 21 S. W Rep. 883. It was not overcome in a case where a rail of a narrow

evidence as to the "usual" distance on other narrow-gauge roads between the end of the movable switch rail and the end of the adjacent permanent rail; since evidence of the practice of other companies operating narrow gauge would level the question down to one of ordinary care: Denver &c. R. Co. v. Woodward, 4 Colo. 1. Upon a prin

ciple already explained, the question whether the defendant has succeeded in rebutting the presumption of negligence arising on proof of the happening of such an accident, is necessarily a question for the jury: Eldridge v. Minneapolis &c. R. Co., 32 Minn. 253. The question whether, at the time of the derailment, the train was running at a great speed, is also a question for the jury, at least where ordinary minds might differ: Andrews v. Chicago &c. R. Co., 86 Iowa 677; s. c. 12 Rail. & Corp. L. J. 296; 52 Am. & Eng. Rail. Cas. 252; 53 N. W. Rep. 399; Vol. II. §§ 1873, 1876. It was for the jury where one of the wheels of a car broke down while the train was running at a very rapid speed,

§ 2811. Derailment Caused by a Broken Rail.—Where this is the cause of the accident, it is not sufficient for the defendant to show that the car was thrown from the track by reason of the breaking of a rail sufficient in size and free from defects; but it must also show that such broken rail had been properly laid down and spiked on sound and sufficient cross-ties. In such a case, it is not error to refuse to instruct the jury that the company has performed its full duty as a common carrier of passengers, when it has furnished for their carriage a car or caboose which will run with safety upon its road, but will be unable to resist the crash when thrown from its track.370 On the other hand, it has been held that a railroad company is not liable for injuries to a passenger from the derailment of a train through the

breaking of a rail, due to the severity of the climate, and the sudden variation of temperature, and not to any want of care or skill on the part of the company in selecting, testing, laying or using such rail.371 But this leaves the question still open whether a railroad company with hundreds of human lives in its charge, discharges the high measure of care which its employment demands when it fails to provide rails of such a size and of such a mode of construction that they will resist the sudden changes of climate which take place in the latitude where the railway is constructed. Upon this subject, it is a notorious fact that accidents from the breaking of rails have greatly declined since the introduction of steel rails in the place of iron ones, and since the use of larger rails, in place of the smaller rails with which railways were constructed at an early period in the development of this mode of transportation. In a case where it was shown that the company had supplied a piece of broken rail with a piece of an old rail, and had run a passenger train over this patched rail at the speed of twenty-five miles an hour, it was held that this was evidence of negligence.372 Where the rail which broke was laid upon a sharp curve, and had been in use there for sixteen years, and its weight had been reduced from sixty to fifty-five pounds per yard, and it had broken some months before and had been repaired by means of splices or side-bars, and was greatly weakened by the wear and the fracture, the continued use of it in that condition presented evidence of negligence.373

§ 2812. Derailment Caused by Breaking of Wheel through Secret Defect. In a leading English case a passenger was injured in consequence of the breaking of the tire to a wheel of a railway carriage in consequence of an air bubble which had remained there in its original manufacture. It was shown that the occasional presence of air bubbles in the tires of railway car wheels could not be prevented by any means known to the manufacturers of such wheels, and that their existence could not be discovered by any known tests. It was held that the passenger could not recover damages from the railway company.374 This is one of the leading English cases affirming the

Canadian &c. R. Co. v. Chali- argued in banc before Lush, Mellor, foux, 22 Can. S. C. 721. and Blackburn, JJ. It was again T2 Peoria &c. R. Co. v. Reynolds, argued on appeal in the Exchequer 88 Ill. 418.

373 McCafferty v. Pennsylvania R. Co., 193 Pa. St. 339; s. c. 44 Atl. Rep. 435.

374 Readhead v. Midland R. Co., L. R. 2 Q. B. 412; s. c. Thomp. Carr. Pass. 124. The case was tried at nisi prius before Lush, J. It was

Chamber (L. R. 4 Q. B. 379) before Kelly, C. B., Byles, Keating, and Montague Smith, JJ., and Channell and Bramwell, BB. But query, whether the presence of air bubbles can not be discovered, either by percussion or by the X-ray?

proposition that a common carrier of passengers is not an insurer of the safety of his vehicles, but is liable only for negligence; and as, upon the whole case, there was no evidence of negligence, it was held that the plaintiff could not recover.

§ 2813. Derailment Caused by Giving Way of the Track.-Theprima facie case of negligence which is made out by proving the mere fact of a derailment375 is not rebutted, where the derailment has been produced by the giving way of the railway track, by proving that the track was apparently in good and safe condition, if there were defects rendering it unsafe which, by the exercise of care and skill, might have been discovered and remedied;376 nor where it is proved that the train was being run at a high rate of speed, when the track was known, or might by proper skill and diligence have been known, to be in a dangerous condition; nor where there were obstructions on the track, under circumstances of danger, and the speed of the train proximately contributed to the injury;377 nor in case the derailment was caused by the unsound condition of the ties, and the insecure fastening of the rails to them, the company not being relieved from liability by the mere fact that one of its servants passed over the track on the same night, before the accident, and did not discover any defect in the rails,378

375 Ante, § 2754.

track in consequence of the track 376 Chicago &c. R. Co. v. Lewis, 145 sinking and giving way, by reason Ill. 67; s. c. 33 N. E. Rep. 960.

of the fact that local rains of un

377 Chicago &c. R. Co. v. Lewis, 145 precedented extent had fallen at a Ill. 67; s. c. 33 N. E. Rep. 960.

378 Chicago &c. R. Co. v. Lewis, 145 Ill. 67; s. c. 33 N. E. Rep. 960. But another court, unduly relaxing the rule which has been established for the public safety in this regard, has held that a railway company is not liable for an injury caused by the overturning of a train through the sudden weakening of its track in consequence of a violent storm, unless the engineer had reason to suspect the weakness of the track, and had neglected to make the proper tests to ascertain whether it was safe: Ellet v. St. Louis &c. R. Co., 76 Mo. 518. It should have been held that there is a continuous and exacting duty of inspection, to the end of preventing such accidents, especially in a climate where violent storms are liable to occur at almost any season of the year. Where some of the cars of a passenger train were thrown from the

particular place on the line of the road, which had produced near the company's embankment a temporary accumulation of water, which had softened the embankment, so that when the train passed over it it gave way under the weight of the engine and threw some of the passenger coaches from the track, whereby the plaintiff was injured, -the court instructed the jury that the liability of the defendant depended upon "the manner and speed of running the train, considering the condition of the track and the state of the weather, if that in any way superinduced the accident." It was held that this instruction was calculated to mislead the jury. by making the liability of the defendant turn upon the dangerous condition of the track and the state of the weather, without submitting, in the same connection, the question of the knowledge of this condi