passing along the street; some unknown substance strikes him, and fells him to the ground. This will not be sufficient evidence to charge the owner of an adjacent building with liability for the damages which he thus sustains. But if a passenger seated in a railway coach is struck by an unknown object and injured, the rule may be different." He may, according to the view of a carrier's liability taken in some jurisdictions, have damages of the carrier without other proof; and according to the view which obtains in other jurisdictions he may not. The difference between his case and that of the foot-passenger is that the carrier is under an obligation by contract to carry him safely. Now, whether the carrier is liable upon the mere proof that an accident happened, depends upon the view which the courts take of the nature of this contractual obligation into which he has entered. If his engagement is to be deemed that of a quasi-insurer of the safe transit of the passenger, then the fact that the accident happened would be evidence of negligence; if he has engaged merely to exercise

28 S. E. Rep. 599; Western &c. R. Co. v. Vandiver, 85 Ga. 470; s. c. 11 S. E. Rep. 781; Terre Haute &c. R. Co. v. Leeper, 60 Ill. App. 194; Baltimore &c. R. Co. v. Welsh, 17 Ind. App. 505; s. c. 47 N. E. Rep. 182; Hoosier Stone Co. v. McCain, 133 Ind. 231; s. c. 31 N. E. Rep. 956; Atchison &c. R. Co. v. McFarland, 2 Kan. App. 662; s. c. 43 Pac. Rep. 788; Cincinnati &c. R. Co. v. Cook, 73 S. W. Rep. 765; 24 Ky. L. Rep. 2152; rehearing denied, 75 S. W. Rep. 218; 25 Ky. L. Rep. 356 (no off. rep.); Henry v. Brackenridge Lumber Co., 48 La. An. 950; s. c. 20 South. Rep. 221; Murphy v. Great Northern R. Co., 68 Minn. 526; s. c. 71 N. W. Rep. 662; Lincoln St. R. Co. v. Cox, 48 Neb. 807; s. c. 67 N. W. Rep. 740; 4 Am. & Eng. R. Cas. (N. S.) 273; Foss v. Baker, 62 N. H. 247; Bahr v. Lombard, 53 N. J. L. 233; s. c. 21 Atl. Rep. 190; Dobbins v. Brown, 119 N. Y. 188; s. c. 28 N. Y. St. Rep. 957; 23 N. E. Rep. 537; O'Connell v. Clark, 6 App. Div. (N. Y.) 33; s. c. 39 N. Y. Supp. 454; Parento v. Taylor, 26 App. Div. (N. Y.) 518; s. c. 50 N. Y. Supp. 518; Van Orden v. Acken, 28 App. Div. (N. Y.) 160; s. c. 50 N. Y. Supp. 843; Klupp v. United Ice Lines, 60 Hun (N. Y.) 586; s. c. 39 N. Y. St. Rep. 782; 15 N. Y. Supp. 597; Martin v. Cook, 60 Hun (N. Y.) 577; s. c. 37 N. Y. St. Rep. 733; 19 Wash. L.

Rep. 454; 14 N. Y. Supp. 329; Turnier v. Lathers, 59 Hun (N. Y.) 623; s. c. 36 N. Y. St. Rep. 821; 13 N. Y. Supp. 500; Dering v. New York &c. R. Co., 50 N. Y. St. Rep. 822; s. c. 32 N. Y. Supp. 344; Stewart v. Toledo Bridge Co., 15 Ohio C. C. 601; Melchert v. Robert Smith &c. Co., 140 Pa. St. 448; s. c. 21 Atl. Rep. 755; 27 W. N. C. (Pa.) 447; 48 Phila. Leg. Int. 243; Stearns v. Ontario Spinning Co., 184 Pa. St. 519; s. c. 41 W. N. C. (Pa.) 433; 39 L. R. A. 842; 39 Atl. Rep. 292; Sorenson v. Menasha Paper &c. Co., 56 Wis. 338. We may illustrate this by referring to the case of Buesching v. St. Louis Gas-Light Co., decided by the St. Louis Court of Appeals. Here a person was found dead in the morning, in an open area or cellarway in front of the defendant's premises. This evidence, without more, did not, in the opinion of the court, warrant a judg ment for damages: 6 Mo. App. 85; s. c. 6 Cent. L. J. 458.

Holbrook v. Utica &c. R. Co., 16 Barb. (N. Y.) 113.

George v. St. Louis &c. R. Co., 34 Ark. 613; Osgood v. Los Angeles Traction Co., 137 Cal. 280; s. c. 70 Pac. Rep. 169; Chicago City R. Co. v. Rood, 62 Ill. App. 550; s. c. 1 Chic. L. J. Wkly. 69; Elgin City R. Co. v. Wilson, 56 Ill. App. 364; Roberts v. Chicago &c. R. Co., 78 Ill. App. 526; s. c. 3 Chic. L. J.

a high degree of care to effect the safe transit of the passenger, then the evidence stated does not make out a prima facie case against him, without the aid of other evidence sufficient to show that if the carrier had exercised this degree of care the accident would not have happened. But in case of injuries to a passenger suffered as the result of a collision between cars belonging to two separate companies, the mere occurrence of the accident will raise a presumption of negligence, if at all, only against the company whose passenger he was, and not against the other with whom he sustained no contractual relation."

§ 7636. Further of this Doctrine.-But it seldom happens in practice (except where the injury resulted in death) that the person complaining of an injury is unable to show more than the mere fact that the accident happened. Every seen event presents itself in company with a collocation of surrounding circumstances. Evidence of these circumstances is admissible, for they are a part of the res gesta. It is therefore generally more correct to say that there are cases where the fact that the accident happened under given conditions, and in connection with certain circumstances, will amount to evidence of negligence sufficient to charge the defendant. To illustrate this, let us take again the case of a traveller in the highway. While proof of the mere fact that he was struck and knocked down by some substance in front of A.'s building will not entitle him to recover damages of A.,

was assigned, injuring her, establishes a prima facie case of negligence against the company, imposing upon it the burden of excusing itself: Horn v. New Jersey Steamboat Co., 23 App. Div. (N. Y.) 302; s. c. 48 N. Y. Supp. 348.

Wkly. 355; Patton v. Pickles, 50 La. An. 857; s. c. 24 South. Rep. 290 (intending passenger injured by collapse of overcrowded bridge leading to ferry); Baltimore &c. R. Co. v. Swann, 81 Md. 400; s. c. 31 L. R. A. 313; 32 Atl. Rep. 175; Alden v. New York &c. R. Co., 26 Ingalls v. Bills, 9 Metc. (Mass.) N. Y. 102; Seybolt v. New York &c. 1; Hegeman v. Western R. Co., 13 R. Co., 95 N. Y. 562; s. c. 47 Am. N. Y. 9; Saunders v. Chicago &c. Rep. 75; Anderson v. Brooklyn &c. R. Co., 6 S. D. 40; s. c. 60 N. W. R. Co., 32 App. Div. (N. Y.) 266; Rep. 148; Readhead v. Midland R. s. c. 52 N. Y. Supp. 934; Kay v. Co., L. R. 2 Q. B. 412; s. c. L. R. Metropolitan Street R. Co., 29 App. 4 Q. B. 379. Negligence of the Div. (N. Y.) 466; s. c. 51 N. Y. company cannot be inferred from Supp. 724 (collision of street cars); a mere jolt of a car operated by Dampman v. Pennsylvania R. Co., electricity, throwing from the plat166 Pa. St. 520; s. c. 31 Atl. Rep. form a passenger standing thereon 244; Stearns v. Ontario Spinning preparatory to alighting when the Co., 184 Pa. St. 519; s. c. 39 L. R. car should reach a cross-walk a few A. 842; 41 W. N. C. (Pa.) 433; 39 feet distant: Etson v. Fort Wayne Atl. Rep. 292; Mexican &c. R. Co. v. Lauricella, 87 Tex. 277; s. c. 28 S. W. Rep. 277; Galveston &c. R. Co. v. Parsley, 6 Tex. Civ. App. 150; s. c. 25 S. W. Rep. 64. Proof of the fall of a berth in a steamboat above that to which a passenger

&c. R. Co., 110 Mich. 494; s. c. 3 Det. L. N. 499; 20 Chic. Leg. N. 9; 68 N. W. Rep. 298.

8 Falke v. Second Ave. R. Co., 38 App. Div. (N. Y.) 49; s. c. 55 N. Y. Supp. 984.

+

yet suppose that he is able to show (1) that he was struck by some solid substance; (2) that this substance was a bale of goods; (3) that, at the time it struck him, this bale of goods was being lowered from the window of a warehouse above the street; (4) that A. was owner of this warehouse. This, it has been held, will make out a prima facie case against A. But A. might rebut this prima facie case by showing (1) that the bale was being lowered without his knowledge, by the servants of another person; or (2) that the traveller was himself one of the persons engaged in lowering the bale; or (3) that although the plaintiff was using the sidewalk as a traveller, yet he had stopped, and was standing still, under the window from which the bale wasbeing lowered, and that he was warned of the danger and told to stand from under, but negligently failed to do so. Such a case as we have just stated is found in the English books. The plaintiff, while walking in the street, was struck and injured by a barrel of flour falling from an upper window of a warehouse belonging to the defendant. There were no other facts in evidence. Whether the barrel was being lowered from the window by the defendant's servants, or whether it fell out by reason of having been negligently stored, or whether it was being lowered by other persons than the defendant's servants, or whether it was thrown out by trespassers, did not appear. It was held, in an action against the flour-dealer whose warehouse it was, that there was evidence of negligence to go to the jury, the declaration alleging that the plaintiff was injured by the negligence of the defendant's servants.10 These and other like cases illustrate the fact

See the cases next cited.

10 Byrne v. Boadle, 2 Hurl. & Colt. 722; s. c. 33 L. J. (Exch.) 13; 9 L. T. (N. S.) 450; 12 Week. Rep. 279. See also, Scott v. London &c. Docks Co., 10 Jur. (N. S.) 1108. Another English case is quite similar. The plaintiff, while making an inquiry at the door of the house in which the defendant had offices, received a push from the defendant's servant, who was watching a packing-case of the defendant's which was propped against the wall of the house. At the same time the packing-case fell upon the plaintiff's foot, injuring him. There was no evidence to show how the packing-case came to fall, or who placed it against the wall. It was held by Bramwell and Pigott, BB., on the authority of the two preceding cases, Martin, B., dissenting, that the fact that the packing-case fell was prima facie

was

evidence of its having been set up improperly, and that there hence evidence of negligence in the defendant to go to the jury. Bramwell, B., in giving his judgment, said: "There is abundant evidence that the plaintiff [defendant] was responsible for this packing-case. It was his; it was close to his premises, and there was evidence that his servant was watching it. If, therefore, it was in an unsafe position, and did damage, he is responsible. Was there, then, evidence of this? I think there was; and that this is one of those cases in which, as has been said, 'res ipsa loquitur. Packing-cases carefully placed in a proper position do not naturally tumble down of their own accord; and we have no right to assume that the fall of this packing-case was caused by the act of some one who was not the defendant's servant. But as

that it is not necessary that the plaintiff's proof, in actions of this kind, should negative all possible circumstances which would excuse the defendant, but that it is sufficient if it negatives all probable circumstances which would have this effect. Although in giving the judgment in this case it was said that there are cases where accidents are of such a nature that negligence may be proved by the mere fact of the accident, yet an analysis of this case will show that it was not such a case. The collocation of facts which were held to constitute evidence of negligence in this case consisted of more than evidence of the mere fact of the accident. They consisted of evidence that an accident happened under such circumstances as showed, prima facie, a violation of duty on the part of the defendant. 1. There was evidence that something struck the plaintiff while he was lawfully on the highway. 2. There was evidence that this something was a barrel of flour which fell from the window of an abutting building. 3. There was evidence that the defendant was the owner of this building. This conforms to the conditions which have been laid down as essential to constitute evidence of negligence. 1. As to a duty on the part of the defendant toward the plaintiff. The defendant owed the plaintiff, in common with the rest of the public, the duty of so conducting his business as not to injure him while lawfully passing

in Byrne v. Boadle [2 Hurl. & Colt. 722], it was said that casks of flour do not roll out of windows naturally, and that if one of them falls in the course of being handed out, that is prima facie negligence in those who are handing it out; and as in Scott v. London &c. Docks Company [3 Hurl. & Colt. 596], it was said that if a bag of sugar, on being let down in a sling, falls, that is prima facie evidence of its having been improperly placed in the sling, so here the facts show a prima facie case. The substance of the matter is that a packing-case, for which the defendant was responsible, fell on the plaintiff and injured him, and that raises a question for the jury as to the defendant's negligence:" Briggs v. Oliver, 4 Hurl. & Colt. 403; s. c. 35 L. J. (Exch.) 163; 14 L. T. (N. S.) 412; 14 Week. Rep. 658. Martin, B., contra, said: "The declaration alleges negligence; but instead of evidence to support it. there is nothing but surmise and imagination. The fallacy which appears to me to underlie these cases is that the plaintiff is to be

excused from proving negligence, because the person who really knows whether there is negligence or not is the defendant's servant. Here the plaintiff might have called him; it is not to be assumed that he would have committed perjury, nor is it for the defendant to disprove negligence. As to the law. my views accord with that stated by Williams, J., in Cotton v. Wood [8 C. B. (N. S.)[568], viz., that it is a rule of the law of evidence, of the first importance, that, where the evidence is equally consistent with either the existence or nonexistence of negligence, it is not competent to the judge to leave the matter to the jury. And in the same case, Erle, C. J., said that a plaintiff is not entitled to succeed unless there be affirmative proof of negligence. In that view I entirely concur; and therefore, inasmuch as, although there may have been negligence in the case, it is consistent with the evidence that there was none, I think the plaintiff was rightly nonsuited:" Briggs v. Oliver, supra.

along the highway. 2. As to his failure to perform this duty. There is more difficulty here; for a person who conducts a lawful business on the side of the street is obviously not an insurer of the safety of those who pass along the street. But this does not answer the question. His business has been conducted in such a manner that an injury has happened from it to B.; and B., from the fact that he is a stranger to A.'s business, and to his methods of conducting it, is unable to show more than this fact. But A., from the nature of the case, is justly presumed to have had knowledge, or the means of knowledge, of the particular circumstances which led to the accident. It therefore becomes a matter of juridical policy that he should be required to disclose what he knows about the cause of the accident, or stand convicted of a violation of duty to B. Here it must be confessed that the rules which the courts have found it necessary to adopt touching the burden of proof, in order to prevent a failure of justice, come in and govern the case. Cases of this kind might be multiplied.11 A person is lawfully on the street, when an adjoining building falls down, injuring him. In a suit against the owner of the building, he makes out his case by showing the facts stated, without more. The reason is, that the owner of the building adjoining a street or highway is under a legal obligation to take reasonable care that it is kept in a safe condition, so that it will not fall into the highway, injuring persons lawfully there. If it did so fall, every fair-minded man would draw the inference that it had not been properly inspected and kept in repair; and if the contrary were true, it is easy for the defendant to show that fact.12 In another case, it appeared that the defendants, who occupied for business purposes the second and upper floors of a building, were hoisting a box, weighing about five hundred pounds,

11 St. Louis &c. R. Co. v. Neely, 63 Ark. 636; s. c. 37 L. R. A. 616; 40 S. W. Rep. 130 (door of car fell out and struck pedestrian); Dixon v. Plums, 98 Cal. 384; s. c. 31 Pac. Rep. 931; 33 Pac. Rep. 268; 20 L. R. A. 698; The Joseph B. Thomas, 86 Fed. Rep. 658; s. c. 56 U. S. App. 619; 30 C. C. A. 333 (fall of keg on stevedore working in hold of vessel); Howser v. Cumberland &c. R. Co., 80 Md. 146; s. c. 27 L. R. A. 154; 30 Atl. Rep. 906 (fall of crossties from passing train injuring a bystander); Melvin v. Pennsylvania Steel Co., 180 Mass. 196; s. c. 62 N. E. Rep. 379 (tool fell from hands of workingman injuring person below); Scheider v. American Bridge Co., 78 App. Div. (N. Y.) 163; s. c.

79 N. Y. Supp. 634 (pedestrian on public street killed by falling column). However, it has been held in one case that in the absence of any specific proof as to how a chopping tool fell from a scaffolding used by a carpenter in repairing a shop, so as to strike a boilermaker repairing a tank in the hold, there was presumptively as much negligence in the latter in remaining unnecessarily where a fall of tools would be likely to hurt him as would be imputed to the carpenter by mere presumption: The Coleridge, 72 Fed. Rep. 676.

12 Mullen v. St. John, 57 N. Y. 567 (able opinion by Mr. Commissioner Dwight); Vincett v. Cook, 4 Hun (N. Y.) 318.