for 19 days, and, subsequent thereto, offered to pay the plaintiffs the amount of an award, and denied its liability on other grounds than the absence of proof of loss. That these facts, if proven to the satisfaction of the jury, would in law constitute a waiver, has been substantially decided by this court. In Insurance Co. v. Floss, 67 Md. 417, 10 Atl. 139, it was said: "The failure to make known the objection, notwithstanding the lapse of time, the fact that the defendants had themselves, with others, instituted an investigation into the circumstances and extent of the loss, and placing the refusal to pay upon other and distinct grounds than the want of sufficient preliminary proofs, furnish the amplest ground for holding all objections to such proof to have been waived by the defendants." The question of waiver was fairly put to the jury by this prayer.

We are of the opinion that all the defendant's prayers were properly rejected. The first, second, and fifth ignored all the evidence tending to prove the facts set out in the plaintiffs' prayer. The defendant has the right to ask an instruction upon segregated portions of the evidence, but the conclusions thus aimed at must be consistent with the truth of all the other facts offered in proof. Winner v. Penniman, 35 Md. 163. If the jury found such facts as would constitute a waiver in law under the plaintiffs' prayer, the propositions contained in these prayers were moot questions, having no relevancy to the issues before them. The seventh and eighth prayers submit a question of law to the jury. Waiver in this case, depending, as it did, upon parol evidence of facts and circumstances, was a matter to be determined by the jury, under the instructions of the court. There was also error in the eighth prayer, in instructing the jury that there was no evidence that the preliminary proof of loss was waived by the defendant. defendant. The third prayer ought not to have been granted, because of the agreement of the parties that, if the jury found for the plaintiffs, they should assess the whole damages and loss sustained by the plaintiffs. If the jury found the contract of insurance, the waiver of the preliminary proof of loss, and the loss of the goods by fire, the right of action had accrued, and no demand was necessary (Allegre v. Insurance Co., 6 Har. & J. 408); and for this reason the fourth prayer was properly rejected. The ninth prayer is defective, in that, whatever may be the law in respect to the nature of the arbitration clause contained in the policy as a condition precedent to the plaintiffs' right of recovery, the proof is clear there was an arbitration and an approval of the loss by arbitrators, though neither counsel offered any of the papers showing the results of it to the jury. The prayer, therefore, presented an hypothesis of fact to the jury for which no support could be found in the evidence. It was therefore properly rejected.

There being error in the ruling contained in the defendant's second exception, the judgment must be reversed, and a new trial awarded. Judgment reversed, and new trial awarded.

HOWSER v. CUMBERLAND & P. R. CO. (Court of Appeals of Maryland. Dec. 18, 1894.) NEGLIGENCE-EVIDENCE.

In an action for injuries caused by plaintiff, who was walking along a pathway outside struck by cross-ties as they fell from a moving of a railroad company's right of way, being train, the mere fact that the ties fell from a gondola car, on which they were loaded, is, under the doctrine of "res ipsa loquitur," prima facie evidence of negligence on the part of the railway company. McSherry and Fowler, JJ., dissenting.

Appeal from circuit court, Washington county.

Action by Solomon Howser against the Cumberland & Pennsylvania Railroad Company for personal injuries. There was a judgment for defendant, and plaintiff appeals. Reversed.

Argued before ROBINSON, C. J., and BRYAN, MCSHERRY, FOWLER, PAGE, BOYD, and ROBERTS, JJ.

J. W. S. Cochrane and F. F. McComas, for appellant. Rob. H. Gordon and Hy. Kyd. Douglas, for appellee.

ROBERTS, J. This appeal brings before us for consideration a single question, yet one of interest and some importance, the determination of which is not entirely free of difficulty. In the fall of 1892, while the plaintiff was passing from the place of his employment to his home, he walked over a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for 20 years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way. As the plaintiff proceeded on his way to his house, the defendant's train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties. When the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car, and about a half dozen fell upon him, and broke one of his legs in two places and otherwise injured him. In his testimony he says, "He supposed there was a jar on the track." The case was tried before a jury, the court, at the instance of the appellee, instructing them "that upon the pleadings in the cause and the evidence given to the jury the plaintiff was not entitled to recovery." If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.

While the general rule undoubtedly is that

the burden of proof that the injury resulted from negligence on the part of the defendant is upon the plaintiff, yet in some cases "the very nature of the action may of itself, and through the presumption it carries, supply the requisite proof." Whart. Neg. par.

421. Thus, when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution, which it readily could and should have done, and in the absence of satisfactory explanation on the part of the appellee, a presumption of negligence arises against it. In the case of Byrne v. Boadle, 2 Hurl. & C. 722, the plaintiff was walking in a public street past the defendant's shop, where a barrel of flour fell upon him from a window above the shop, and seriously injured him. The court held that these facts constituted sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence. Pollock,

C. B., said: "There are many accidents from which no presumption of negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence." Shortly after this decision a similar case, that of Scott v. Dock Co., 3 Hurl. & C. 596, was decided in the exchequer chamber. The plaintiff proved in this case that, while in the discharge of his duties as a customs officer, he was passing in front of a warehouse in the dock, and was felled to the ground by six bags of sugar falling upon him. The court said: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." Then followed the leading case of Kearney v. Railway Co., L. R. 5 Q. B. 411. This case underwent great discussion, with a view to the settlement of the true principle governing it. The facts were that the plaintiff was passing on a highway under a railway bridge, when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly before the accident. accident. The bridge had been built three years, and was an iron-girder bridge, resting on iron piers on one side, and on a perpendicular brick wall

with pilasters on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. motion was made for a nonsuit on the ground that there was no evidence of negligence to leave to the jury. The court of queen's bench, by a divided vote, held that this was a case to which the maxim, "Res ipsa loquitur," was applicable; or, in other words, that there was prima facie evidence of negligence. Kelly, C. B., delivering the opinion on the appeal, said: "We are all agreed that the judgment of the queen's bench must be affirmed. * * * The question, therefore, is whether there was any evidence of negli gence on the part of the defendants; and by that we all understand such an amount of evidence as to fairly and reasonably support the finding of the jury. The lord chief justice, in his judgment in the court below, said, 'Res ipsa loquitur,' and I cannot do better than to refer to that judgment. It appears, without contradiction, that a brick fell out of the pier of the bridge, without any assignable cause, except the slight vibration caused by a passing train. This, we think, is not only evidence, but conclusive evidence, that it was loose; for otherwise so slight a vibration could not have struck it out of its place. No doubt it is humanly possible that the percussion of the iron girder, arising from expansion and contraction, might have gradually shaken out the mortar, and so loosened the brick; but this is merely conjecture. The bridge had been built two or three years, and it was the duty of the defendants, from time to time, to inspect the bridge, and ascertain that the brickwork was in good order, and all the bricks well secured. If there were necessity for other evidence, the case is made still stronger by the evidence of the plaintiff, which was uncontradicted on the part of the defendants, that after the accident, on fitting the brick to its place, several other bricks were found to have fallen out." And again, in the case of Briggs v. Oliver, 4 Hurl. & C. 403, the plaintiff, going to a doorway of a house in which the defendant had offices, was pushed out of the way by his servant, who was watching a packing case belonging to his master, and was leaning against the wall of the house. The plaintiff fell, and the packing case fell on his foot, and injured him. There was no evidence as to who placed the packing case against the wall, or who caused its fall. The court held that there was a prima facie case against the defendant to go to the jury.

We have made full reference to the foregoing cases as showing the views of the English courts upon this question. These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiff's proof, in actions of this kind, should negative all possible circumstances which would excuse the defend. ant, but it is sufficient if it negatives all

probable circumstances which would have this effect. Thomp. Neg. 1229. It is also It is also well settled that the cause of accident must be connected with the defendant either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent. Higgs v. Maynard, 12 Jur. (N. S.) 705; Welfare v. Railway Co., L. R. 4 Q. B. 693; Smith v. Railway Co., L. R. 2 C. P. 10. When, however, there is no duty upon the plaintiff, as under the facts of this case, or when the duty which he has to perform has been performed by him, it is clear that the negligence of the plaintiff is out of the question; and, if the accident is connected with the defendant, the question whether the phrase, "Res ipsa loquitur," applies or not, becomes a question of common sense. Whittaker's Smith, Neg. 422. The American cases sustaining the maxim, "Res ipsa loquitur," are numerous and to the point. In the case of Cummings v. Furnace Co., 60 Wis. 603, 18 N. W. 742, and 20 N. W. 665, when the defendant company was engaged in unloading iron ore from a vessel by means of a crane to which was attached a bucket, while so engaged the bucket tipped, and threw its contents upon a seaman lawfully working upon the deck of the vessel. The court said: "The accident itself was of such a character as to raise a presumption a presumption of negligence, either in the character of the machinery used or in the care with which it was hauled; and, as the jury found the fault was not with the machinery, it follows that it must have been in the hauling; otherwise there is no rational cause shown for its happening." The leading American case, however, appears to be Mullen v. St. John, 57 N. Y. 567. The opinion of the court was delivered by Dwight, C., and is a most able and exhaustive examination of the subject. He cites with approval many of the English and American cases to which reference is made in this opinion. The case was one in which the walls of a building, without any special circumstances of storm and violence, fell into one of the streets of the city of Brooklyn, knocking down the plaintiff, who was on the sidewalk, and seriously injuring her. The court said: "There was some evidence tending to show that it was out of repair. Without laying any stress upon the affirmative testimony, it is as impossible to conceive of this building so falling, unless it was badly constructed or in bad repair, as it is to suppose that a seaworthy ship would go to the bottom in a tranquil sea and without collision. The mind, necessarily, seeks for a cause for the fall. That is apparently the bad condition of the structure. This, again, leads to the inference of negligence, which the defendant should rebut. To like effect are Lyons v. Rosenthal, 11 Hun, 46; Edgerton v. Railroad Co., 39 N. Y. 227; Kirst v. Railroad Co., 46 Wis. 489, 1 N. W. 89; Smith v. Gaslight Co., 129 Mass. 318; Clare v. Bank, 1 Sweeny, 539; Brehm v. Railway Co., 34 Barb. 256; Sullivan v. Railroad Co.,

39 La. Ann. 800, 2 South. 586; Hays v. Gallagher, 72 Pa. St. 136; Thomas v. Telegraph Co., 100 Mass. 156; Dixon v. Pluns, 98 Cal. 384, 33 Pac. 268. We have referred to numer. ous cases as illustrating the views which we entertain, because the question on this appeal has not heretofore been determined by this court. Cases resting in contract have frequently received our consideration, and they are generally free from difficulty, because the mere happening of the accident will be prima facie evidence of a breach of contract, without further proof; while in those not resting in contract it must not only appear that the accident happened, but the surrounding circumstances must be such as to raise the presumption of a failure of duty on the part of the defendant towards the plaintiff." Article, "Res Ipsa Loquitur," Judge Seymour D. Thompson, in 10 Cent. Law J. 261. None of the cases herein quoted relate to those resting in contract. In all cases of the character we have been considering, the most careful scrutiny should be given to the circumstances attending the accident, and, while an excellent authority has said that after all the question resolves itself into one of common sense, we would add that it should be of a high order; for it is unquestionably true that the authorities are by no means in accord on the question which arises out of the doctrine of res ipsa loquitur. The facts of this appeal are very meager, but they by no means lie on the border line, nor even close to it. Here you find the plaintiff traversing a path over which the defendant had no dominion, for the plaintiff was rightfully there. The defendant moves its cars over its roadway along said path, and from a gondola car there slips a half dozen railroad cross-ties, falling upon the plaintiff, and seriously injuring him. plaintiff was guilty of no negligence in being where he was at the time he was injured, and, in so far as the defendant's rights are involved, the principle is the same whether he was on the land of Mr. Walsh or on his own land. The accident happened at the hour of noon, as the plaintiff was on his way to his dinner. There is no contention that it did not happen just as the plaintiff has himself represented. The plaintiff had no control over, nor was he in any way connected with, the loading or management of the cars or trains upon defendant's road. If the crossties had been properly loaded, there existed no reasonable probability of their falling off. A "cross-tie" is defined to be a sleeper, connecting and supporting the parallel rails of a railroad. Stand. Dict. 444. Their figure and dimensions are familiar, and their flat surfaces and weight illustrate how readily they can be, loaded so as to form an almost compact body of wood, if reasonable care be exercised in placing them on the flat bottom of the car, and proper lateral support be given them. If by accident the ties had become displaced, it was a duty incumbent upon the defendant and its servants to have re

The

falling of the ties, caused the injury; because then the probability of the existence of a nonactionable accident, as the cause of the injury, would necessarily be prescinded. But with the numerous probabilities existing that the same result could have happened, though there had been no anterior negligence, the jury, if allowed to consider the case at all, would have been at liberty to speculate between these conflicting probabilities, none of which were excluded by the proven facts, and to base a verdict, at best, upon mere conjecture. The cases relied on by the appellant are distinguishable from the one at bar. Take, for example, the case of Byrne v. Boadle, 2 Hurl. & C. 726. There the barrel rolled out of the warehouse of the defendant, and fell upon a person rightful passing along the public thoroughfare belov., and, though no evidence was offered to show what caused the barrel to roll out, the case was allowed to go to the jury upon the theory, I take it, that, according to the fixed laws of dynamics, it was physically impossible for the barrel to roll at all without the application of some force which must have been applied on the defendant's premises while those premises were so unguarded as to permit the barrel to roll out of the door. Had the door not been left open when it ought to have been closed, or, at all events, ought to have been protected by a servant or watchman, the barrel could not have rolled out as it did. Allowing the door to remain open or unguarded was an act of negligence. Now, negligence, in the abstract, is a nullity, but in the concrete it is either positive or negative; that is to say, it consists either in the doing of some act which ought not to have been done, or in the omission to do some act that ought to have been done. In both instances it is the breach of a duty that is owed to another. In the barrel case the plain duty which the owner of the warehouse owed to the public, and to every individual who was entitled to use the public street, was to keep the door so closed or guarded that a barrel could not roll out in the way it did roll out, no matter how it received the impetus, and the failure to do this was clearly an act of negligent omission, which directly caused the injury. Had the omitted duty been observed, it was physically impossible for the barrel to roll out as it did. But the case at bar is widely different. It does not follow that because the logs fell off the car they were negligently put on,-for, though properly loaded, they may have become displaced, without negligence, by the jarring incident to a moving train; or, by other means, they might have fallen without involving a breach of duty towards any one, and therefore without involving antecedent negligence. To conclude that there was negligence because an injury happened is to assume as proved the very fact to be proved. It seems to me, then, that some evidence tending to show negligence ought to have been adduced,

and that the court below was right in withholding the case from the jury upon the failure of the plaintiff to adduce such additional evidence. I am authorized by Judge FOWLER to say that he concurs in these views.

MAYOR, ETC., OF CITY OF ANNAPOLIS V. HOWARD.

(Court of Appeals of Maryland. Dec. 18, 1894.) APPEAL-DECISION ON HABEAS CORPUs.

Acts 1892, c. 506, § 77, providing for bills of exceptions and appeals in criminal proceedings, does not authorize an appeal from an order in habeas corpus proceedings.

Appeal from circuit court, Anne Arundel county.

Petition by William Howard against the mayor and aldermen of the city of Annapolis for a writ of habeas corpus. From an order discharging petitioner from custody the city appeals. Dismissed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, FOWLER, PAGE, BOYD, and ROBERTS, JJ.

E. S. Riley, for appellants. Jas. W. Owens, for appellee.

ROBERTS, J. The appeal in this case is taken from an order passed by the Honorable James Revell, one of the associate judges of the Fifth judicial circuit of the state of Maryland, discharging the appellee from the custody of the sheriff of Anne Arundel county. It appears from the record that the petitioner was in the custody of the sheriff of said county under a warrant of commitment issued by a justice of the peace of said county on a judgment convicting him of violating an ordinance of the city of Annapolis requiring all persons who bring their own growth of products to the city for sale during market hours to take out a license therefor. In this state of case the appellee applied for the writ of habeas corpus. The only question before us is whether an appeal lies from an order of this character. The appellants, in their brief, admit that up to the present Maryland has neither allowed writs of error nor appeals from orders on habeas corpus, except under the acts of 1872 and 1884; but it is contended that since the passage of the act of 1892 (chapter 506) a different practice ought to prevail, and appeals in habeas corpus cases be allowed. An examination of the provisions of that act will not justify any such conclusion. Section 77 of the act reads: "The parties to criminal proceedings shall be entitled to bills of exceptions, in the same manner as in civil proceedings, and appeals from judgments in criminal cases may be taken in the same manner as in civil cases," etc. The appellants' contention can only be made effective by construing the order passed by the learned judge in this case as a judgment in a criminal case from which an appeal would lie in the same manner as in