thing where the plaintiff proves all the circumstances of the accident, and the evidence not only fails to show negligence, but does show that ordinary care had been exercised by the defendant in the premises.

§ 7696. Contributory Negligence. This subject has received full attention in an earlier volume, and its consideration at this time would only amount to a restatement of principles and views already familiar to the reader. Additional cases on this point are collected in the margin, and it will not escape notice that there is an increasing array of authorities imposing this burden of proof on the defendant where contributory negligence does not appear from the evidence of the plaintiff. It may not be inappropriate to state that in actions

for wrongful death, it is the rule of the United States courts, irrespective of the decisions in the courts of the State where the Federal courts are held, that the burden is on defendant to show that the deceased was negligent and that his negligence contributed to the injury which resulted in his death.8a

§ 7697. Meaning of Term, "Prima Facie Evidence of Neligence." -The meaning of the term "prima facie evidence of negligence," or, as it is frequently expressed, "evidence of negligence," is either, (1) that evidence which, unless rebutted, is sufficient to prove negligence on the part of the defendant, and which when not rebutted entitles the plaintiff to a verdict; or, (2) at least, which takes the question of negligence to the jury, leaving them to decide whether it proves negligence, subject, of course, to the power of the court to grant a new trial if they decide wrongly."

§ 7698. Where Evidence Establishes Fact that Injury was Possible from More than One Cause.-Where the effect of the evidence is merely to establish that there were two independent causes, either one of which may have been the proximate cause of the injury, the burden is on the plaintiff to show that the cause for which the defendant is responsible was the one which produced the injury sought to be recovered for.10

§ 7699. Existence of Ordinance.-Where a violation of an ordinance is the gist of the action, the burden of proof is upon the plaintiff to show the existence of the ordinance before he can recover.11

§ 7700. Malpractice of Physician.-The plaintiff, in an action for malpractice in erroneously treating him for one ailment instead of another with which he claims to have been afflicted, must establish the latter fact where he makes no claim that the treatment was not entirely proper for the ailment for which it was administered.1

12

§ 7701. Defects in Construction of Buildings.-An owner who contracted for the construction of a building which was inherently defective and dangerous, and who seeks to avoid liability for personal injuries caused by the fall of the building during erection, upon the ground that he employed a competent architect, and that the building conformed to the plans prepared by the latter, has the burden of showing such fact.13

§ 7702. Unsanitary Condition of Jail.-The burden is on the plaintiff, in an action against a town to recover for death or injuries alleged to have been caused by improper and unsanitary conditions of the prison in which he was incarcerated, to show, by a preponderance of evidence, that the defendant neglected its duty in this regard and that the death was the proximate result of such negligence.1*

§ 7703. Unsafe Condition of Street or Highway.-In cases of this character, it is incumbent on the plaintiff to show how the accident occurred,15 and that the city had actual or implied notice of the existence of the defect causing the injury.16 Where the city relies on an

Kansas City, 91 Mo. App. 586; Mc-
Carty v. Lockport, 13 App. Div. (N.
Y.) 494; s. c. 43 N. Y. Supp. 693;
Searles v. Manhattan R. Co., 101
N. Y. 661; s. c. 2 Cent. Rep. 442;
Ahern v. Melvin, 21 Pa. Super. Ct.
462; Musbach v. Wisconsin Chair
Co., 108 Wis. 57; s. c. 84 N. W.
Rep. 36.

11 Wabash R. Co. v. Mahoney, 79 Ill. App. 53.

12 Richards v. Willard, 176 Pa. St. 181; s. c. 35 Atl. Rep. 114; 38 W. N. C. (Pa.) 400; 27 Pitts. L. J. (N. S.) 1.

13 Burke v. Ireland, 26 App. Div. (N. Y.) 487; s. c. 50 N. Y. Supp. 369.

14 Coley v. Statesville, 121 N. C. 301; s. c. 28 S. E. Rep. 482.

15 Davis v. Alexander City, 137 Ala. 206; s. c. 33 South. Rep. 863; Atlanta v. Stewart, 117 Ga. 144; s. c. 43 S. E. Rep. 443; Stacy v. Phelps, 47 Hun (N. Y.) 54; s. c. 14 N. Y. St. Rep. 177; Zimmermann v. Conemaugh (Pa.), 2 Cent. Rep. 361; Lynn v. Rapho Twp., 186 Pa. St. 420; s. c. 40 Atl. Rep. 568; Hyer v. Janesville, 101 Wis. 371; s. c. 77 N. W. Rep. 729.

16 Jones v. Greensboro, 124 N. C. 310; s. c. 32 S. E. Rep. 675; Sherman v. Greening (Tex. Civ. App.), 73 S. W. Rep. 424; Schillinger v. Verona, 88 Wis. 317; s. c. 60 N. W. Rep. 272.

extraordinary storm as an excuse for injuries caused by a defective street, it has the burden of proof to show that the defect resulted from the storm and not from its own negligence.17 A city making the claim that the injuries were not received on a public highway because it had not been worked within a specified number of years after its dedication, as required by the laws of the State, has the burden of proving this fact.18

§ 7704. Fright of Horses.—In cases of fright caused by blowing off steam, the burden is placed on the plaintiff to show that the emission of the steam was unnecessary.19 In an action against a municipality for an injury caused by a horse taking fright at a disabled steam roller left in the street, the burden of proof is on the plaintiff to show that such an object was calculated to frighten a horse of ordinary gentleness, and that the horse frightened was in fact one of ordinary gentleness and tractability, and easily subject to control.20

21

$7705. Where Cattle are Killed or Injured on Railroad Track. -In cases of this character the burden is on the railroad company to show that it used due care to avoid killing stock on its right of way,' and that the statutory duties as to fences, cattle-guards, signals, etc., were observed.22 Where the stock entered upon the track at an unfenced place the railroad company has the burden of showing that it was not bound to erect a fence at such place.23 Where the defendant has shown that the road was inclosed by a good and lawful fence, then the burden of proof of negligence rests on the plaintiff. The plaintiff likewise has the burden of proof where he claims that a fence maintained by the company was insufficient. In an action for killing an animal while within the defendant's station yard, where the defendant was not required by law to fence its right of way, it was held that the plaintiff must prove not only the killing, but that it was negligently

25

"Wilkins v. Wilmington, 2 Marv. (Del.) 132; s. c. 42 Atl. Rep. 418.

15 McVee v. Watertown, 92 Hun (N. Y.) 306; s. c. 72 N. Y. St. Rep. 392; 36 N. Y. Supp. 870.

19 Louisville &c. R. Co. v. Lee, 136 Ala. 182; s. c. 33 South. Rep. 897.

20 District of Columbia v. Moulton, 15 App. (D. C.) 363; s. c. rev'd, 182 U. S. 576; 21 Sup. Ct. Rep. 840; 45 L. ed. 1237.

21 St. Louis &c. R. Co. v. Norton, 71 Ark. 314; s. c. 73 S. W. Rep. 1095; St. Louis &c. R. Co. v. Bragg, 66 Ark. 248; s. c. 50 S. W. Rep. 273. Chattanooga &c. R. Co. v. Daniel, 121 Ala. 362; s. c. 25 South. Rep.

24

197; Georgia &c. R. Co. v. Hughes, 87 Ala. 610; s. c. 39 Am. & Eng. R. Cas. 674; 6 South. Rep. 413.

23 Indianapolis &c. R. Co. v. Clay, 4 Ind. App. 282; 28 N. E. Rep. 567; 30 N. E. Rep. 916; Croft v. Chicago &c. R. Co., 72 Minn. 47; s. c. 11 Am. & Eng. R. Cas. (N. S.) 652; 74 N. W. Rep. 898; Missouri &c. R. Co. v. Willis (Tex. Civ. App.), 52 S. W. Rep. 625.

24 Atchison &c. R. Co. v. Cahill, 11 Colo. App. 245; s. c. 52 Pac. Rep. 1111.

Rabbermann v. Pierce, 77 Ill. App. 405.

done; but proof of any negligence of the defendant proximately causing the injury would be sufficient.26

§ 7706. Insufficiency of Locomotive Bell.-A person injured by a railroad train backed against him at a place which is not a public crossing has the burden of proof to show that the engine was not provided with a proper bell.27

$7707. Ejection of Passengers. In an action for wrongfully ejecting a railway passenger at a station short of her destination, proof by the plaintiff that the train sometimes stopped at her destination, makes a prima facie case that under the company's regulations the train was required to stop there, so as to cast on the company the burden to show that such stops were exceptional and made under special instructions from the company.28 And where the passenger is ejected on the ground that the ticket he presented had expired, the burden of proof is on the carrier to show that there was an express contract with the plaintiff limiting the time within which the ticket purchased by him might be used.29

§ 7708. Care as to Effects in Sleeping Car.—A sleeping car company has the burden of proving that a loss of money by a passenger while he was asleep did not occur because of failure of its employés to discharge their duty of maintaining such guard as was reasonably necessary to secure the safety of such money.30

§ 7709. Care in the Transportation of Goods.-It may be stated, generally, that when goods in the custody of a common carrier are lost or damaged, the presumption is that the loss was occasioned by his fault, and the burden is cast upon him to prove that it arose either without negligence on his part, or from a cause for which he was not responsible. Proof of the delivery of the goods to the carrier in good

31

26 Southern Kansas R. Co. V. Cooper, 32 Tex. Civ. App. 592; s. c. 75 S. W. Rep. 328.

27 Boyd v. Cross (Tex. Civ. App.), 47 S. W. Rep. 478.

28 Sira v. Wabash R. Co., 115 Mo. 127; s. c. 21 S. W. Rep. 905.

Boyd v. Spencer, 103 Ga. 828; s. c. 30 S. E. Rep. 841; 5 Am. Neg. Rep. 619; 11 Am. & Eng. R. Cas. (N. S.) 247.

30 Kates v. Pullman Palace Car Co., 95 Ga. 810; s. c. 23 S. E. Rep. 186.

31 Mouton V. Louisville &c. R. Co., 128 Ala. 537; s. c. 29 South. Rep. 602; Wilson v. California &c. R. Co., 94 Cal. 166; s. c. 11 Rail. & Corp. L. J. 51; 29 Pac. Rep. 861; Mears v. New York &c. R. Co., 75 Conn. 171; s. c. 52 Atl. Rep. 610; 56 L. R. A. 884; Christie v. The Craigton, 41 Fed. Rep. 62; Cummings v. Barracouta, 40 Fed. Rep. 498; Hudson River Lighterage Co. v. Wheeler Condenser &c. Co.. 93 Fed. Rep. 374; The Burgundia, 29 Fed. Rep. 607; The Giava,