to their rooms, by means of iron hooks attached to its sides. Just as it reached the second floor the hooks broke, and the box fell, broke through the hatchway on the first floor, and struck and injured the plaintiff, who was lawfully in the basement. This, without more, was held evidence of negligence on the part of the defendants warranting a verdict for the plaintiff.13 So, proof of the fact that water escaped from the defendant's hydrant into the plaintiff's apartment, in the story below, makes out a prima facie case of negligence, which the. defendant must excuse or pay damages.14 So, the fact that tools or other objects fall from an elevated railroad and injure a person thereunder, in the absence of explanation is generally held to raise a presumption of negligence on the part of the railroad company.15 The defendant, in another case, was under an obligation to keep a bridge in repair, but had suffered it to get out of repair. The plaintiff was found lying under the bridge at midnight on a dark night, hurt. He made no other statement than that he had fallen from the bridge. There was no evidence as to how he came to fall from it. He was in court at the trial, but neither party called him as a witness. It was held that there was evidence of negligence for the jury. Presumptively he fell from the bridge by reason of its having no railings. 16 This case is incapable of vindication. That juridical policy which, as already pointed out, frequently shifts the burden of proof upon the defendant when the plaintiff has offered evidence of negligence which, though slight, is all which, from the nature of the case, he could produce, should have operated to preclude a recovery in this case. No person ought to succeed in a court of justice on a presumption, where knowledge of the very facts wanted to show the merits of the case is within his breast or within his reach, and yet is suppressed or withheld by him.17 So, the fact that a telegraph-wire is found swinging across the highway so low as to interfere with a traveller's horses

13 Lyons v. Rosenthal, 11 Hun (N. Y.) 46.

"Warren v. Kaugman, 2 Phila. (Pa.) 259 (Sup. Ct. Pa., opinion by Lowrie, J.); Martin v. Coleman, 14 Misc. (N. Y.) 505; s. c. 70 N. Y. St. Rep. 714; 35 N. Y. Supp. 1069; aff'g s. c. 34 N. Y. Supp. 1143.

Anderson v. Manhattan R. Co., 1 Misc. (N. Y.) 504; s. c. 49 N. Y. St. Rep. 233; 21 N. Y. Supp. 1; Hogan v. Manhattan R. Co., 149 N. Y. 23; s. c. 28 Chic. Leg. N. 302; 43 N. E. Rep. 403; Maher v. Manhattan R. Co., 53 Hun (N. Y.) 506; s. c. 26 N. Y. St. Rep. 742; 6 N. Y. Supp. 309; Mossemann v. Manhattan R. Co., 32 N. Y. St. Rep. 61;

s. c. 10 N. Y. Supp. 105; Volkmar v. Manhattan R. Co., 134 N. Y. 418; s. c. 31 N. E. Rep. 870; 30 Am. St. Rep. 678; 47 N. Y. St. Rep. 631; Wiedmer v. New York &c. R. Co., 41 Hun (N. Y.) 284.

16 Hays v. Gallagher, 72 Pa. St. ||

136 (opinion of the court by Sharswood, J.). The fact that a bridge fell by reason of a load, not in excess of what it ought to bear, is some evidence of lack of proper repair: Cook v. Dean, 11 App. Div. (N. Y.) 123; s. c. 42 N. Y. Supp. 1040.

1 Bahr v. Lombard, 53 N. J. L. 233; s. c. 21 Atl. Rep. 190.

is, unexplained and unaccounted for, some evidence of negligence to charge the company with damages sustained by the traveller whose horses have become entangled therein.18 On the other hand, a case is found where it appeared that the defendant was possessed of a workshop, the window of which overlooked a yard in which the plaintiff was engaged in the service of his employer. A ladder in the defendant's workshop fell through one of the windows, and the fragments of glass, in falling, injured the plaintiff's eye. It was not shown that the ladder was under the control of the defendant or his servants. It was held that there was no evidence of negligence to go to the jury. The fact that a ladder falls through a person's window is not, in the view of Erle, C. J., an event occurring in the course of the defendant's business, or in the management of his household. Smith, J., said: "If we were to decide in the plaintiff's favor, and hold that an accident of this kind was in itself prima facie evidence of negligence on the defendant's part, we should be throwing a very great burden on the owners of houses."19 So, where a pedestrian on the street was injured by a brick falling from a building in course of construction on which a large force of workmen employed by numerous contractors were at work, it was held that the happening of the accident presumed negligence, but as there was no evidence to show who set the brick in motion a judgment against particular contractors could not be sustained.20 So, it was held in the Superior Court of New York (but on grounds which we must think doubtful since the decision of the Commission of Appeals in Mullen v. St. John21) that evidence of the mere fact that a rock fell from the bank of the defendant's canal upon the plaintiff's canal-boat was not, without more, sufficient to charge the defendant with damages, although it is presumed that the defendant was under an obligation to keep the canal in repair. 22

§ 7637. This Subject, how Connected with that of the Burden of Proof. The subject discussed in the previous section is, in the judgment of the writer, sometimes improperly complicated with that of the burden of proof. (A little reflection would, it should seem, convince one that there is not always a direct connection between the question as to what legal value is to be attached to certain facts in evidence, and the question which party is bound to prove such facts. J

18 Thomas v. Western Union Tel. Co., 100 Mass. 156.

19 Higgs v. Maynard, 12 Jur. (N. S.) 705; s. c. 1 Harr. & Ruth. 581; 14 Week. Rep. 610; 14 L. T. (N. S.) 332.

20 Wolf v. 164 N. Y. 30.

American Tract Soc.,

21 57 N. Y. 567.

22 Lane v. Salter, 4 Robt. (N. Y.) 239. Compare Worster v. Fortysecond Street R. Co., 50 N. Y. 203.

Wrong citation

Thus, if the body of A. is found at daybreak upon a railway-track, dead, and mangled in such a way as to leave no doubt that he had been run over during the previous night by a passing train, this fact, without more, does not enable any reasonable man to form a conclusion as to whether his death was caused by the negligence of the servants of the railway company, or by his own negligence. If any inference could be drawn from this fact alone, it would be in favor of the company; for a railway company is, under ordinary circumstances, entitled to the free use of its track, and common experience shows that a man can more easily get out of the way of a railway train than such a train can stop for a man. It would seem to be an entire departure from sound principles to hold that such a fact speaks with sufficient potency to entitle the representative of the deceased person to recover damages for no better reason than that under such a state of facts the burden of proof ought to be on the defendant. Such facts, not being evidence of negligence on the part of the servants of the defendant, do not make out a prima facie case against it, and ought not to cast any burden upon it; for to say that a defendant is bound to excuse his fault before he is shown to have been guilty of any fault is nonsense.23

§ 7638. Failure to Perform Statutory Duty Negligence per Se.We may proceed a step further, and apply the doctrine of res ipsa loquitur to another class of cases. If a duty is enjoined upon A. by express statute, and B. is, without fault on his part, injured by reason of the fact that A. has failed to perform it, B. makes out a case for damages against A. by merely showing that A.'s neglect to comply with the statute was a proximate cause of the injury which he sustained.24 The courts frequently express this rule by saying that a failure to perform a statutory duty is negligence per se.25 Its application has been already shown in many different situations, and it

Church v. Northern &c. R. Co., 31 Fed. Rep. 529; Bryant v. Illinois &c. R. Co. (La.), 3 Am. Neg. Rep. 406; s. c. 22 South, Rep. 799 (no off. rep.); Benedick v. Potts, 88 Md. 52; s. c. 5 Am. Neg. Rep. 484; 40 Atl. Rep. 1067; 41 L. R. A. 478; State v. Baltimore &c. R. Co., 58 Md. 221; Spears v. Chicago &c. R. Co., 43 Neb. 720; s. c. 62 N. W. Rep. 68; Dame v. Laconia Car Co., 71 N. H. 407; s. c. 52 Atl. Rep. 864. See generally, Welsh v. Erie &c. R. Co., 181 Pa. St. 461; s. c. 37 Atl. Rep. 513.

457; Karle v. Kansas City &c. R. Co., 55 Mo. 476; Worster v. Proprietors of Canal Bridge, 16 Pick. (Mass.) 541.

See Vol. I, § 10, et seq. See also, Louisville &c. R. Co. v. Gobin, 52 Ill. App. 565; Havlin v. Krulish, 25 Misc. (N. Y.) 402; s. c. 54 N. Y. Supp. 1093; s. C. rev'd on other grounds, 26 Misc. (N. Y.) 381; 56 N. Y. Supp. 275 (failure to protect cogs, shafting, etc.); McRickard v. Flint. 114 N. Y. 222; s. c. 23 N. Y. St. Rep. 100; 21 N. E. Rep. 153 (statute requiring protection of el

"Heard v. Hall, 16 Pick. (Mass.) evator shafts).

will not be further dwelt upon. There appears to be no good reason why the same principle should not be equally applied to a neglect to perform a duty arising at common law; and it has been so applied.20 Thus, the right granted to a street-railway company to lay its tracks in a public street is held to carry with it an obligation to keep them in repair. This obligation arises at common law, in conformity to a principle already discussed, namely, that whenever a person or corporation obstructs a public highway for his or its private benefit or gain, he or it is bound to see that the obstruction is kept in such a state as not to endanger public travel thereon.27 Now, proof that such a defect existed, and that it was a proximate cause of the injury to the plaintiff, makes out a prima facie case against the obstructor for damages. 28

§ 7639. In Other Cases Not Resting in Contract, the Evidence must Raise a Presumption of a Want of Ordinary or Reasonable Care. -A want of ordinary care, except in cases resting in contract, is the lowest grade of fault that will constitute a basis of legal liability. By ordinary care is meant that degree of care which ought reasonably to be expected of a person in the particular situation disclosed by the evidence; and this is synonymous with reasonable care. 20 The standard is that of an ideal reasonable and just man in the situation of the person alleged to have done the injury; and this standard will be, to each individual of the twelve jurymen, the particular juryman himself. This standard is, or ought to be, that of the Golden Rule,-namely, that, other things being equal, a person is bound to exert himself to avoid injuring others, to the same extent as though the threatened injury were to himself. "In order to avoid doing damage to the property of another, a person is bound, in law, to such care in the use of his own property as a prudent man would employ under similar circumstances if he were himself the owner of the property exposed to damage."30 "Each proprietor," says another court, "in exercising his own rights, in his own territory, shall act with reasonable skill and care to avoid injury to others; and, as an approximate rule for measuring that degree, it shall be that degree of ordinary skill, care, and diligence which men of common and ordinary prudence, in relation to similar subjects, would exercise in the conduct of their own af

26 Thomas v. Western Union Tel. Co., 100 Mass. 156. This is also the effect of the preceding cases. 27 See Vol. I, § 1190.

25 Worster v. Forty-second Street R. Co., 50 N. Y. 203; France v. Erie

R. Co., abstracted in 2 Hun (N. Y.) 513.

544.

Durant v. Palmer, 29 N. J. L.

30 Campbell v. Bear River &c. Co., 35 Cal. 679, 683.

fairs."31 A failure to exercise this degree of care constitutes that failure of duty which the law terms negligence. Negligence has been defined to be "the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. It is not absolute or intrinsic, but always relative to some circumstance of time, place or person."32 The quantum of skill, diligence, and attention which is exacted of a man in order to constitute what is termed reasonable care, is not an absolute thing, but relative; it must increase according to the danger surrounding the particular act which the person is doing.3 A fortiori, a prima facie case for damages is made out where the evidence discloses or raises on the part of the defendant a higher degree of fault than that which consists of a mere want of ordinary or reasonable care. It may disclose willful negligence, which has been defined as the willfully omitting to do a thing which the person is under a duty to do.34 For, as murder includes manslaughter, assault and battery an assault, and the like, so an allegation of willful negligence is said to include all inferior grades of negligence.35 It is not intended to discuss in this work the subject of negligence as a basis of criminal liability. It might be inferred, however, that in order to raise negligence to the degree of a crime, it should be of a gross character, such as the law denominates wanton. Such, however, seems not to be the law. In a case where the ground-bailiff of a mine, by failing to direct an air-heading to be made for the ventilation of the mine, caused the death of a miner, the jury were told, under an indictment for manslaughter, to consider whether, by omitting this duty, he was guilty of a want of ordinary and reasonable precaution. The question was, whether it was the ordinary and plain duty of the person to have caused an air-heading to be placed in the

31 Shrewsbury v. Smith, 12 Cush. (Mass.) 177, 181.

32 Broom's Leg. Max. 329; Richardson v. Kier, 34 Cal. 63, 75.

Vaughn v. Scade, 30 Mo. 600. Jacob v. Louisville &c. R. Co., 10 Bush (Ky.) 263.

insufficiency of its bridge for that end, and, after the lapse of a reasonable time, a voluntary failure to remedy the defect; and a palpable and perilous defect, which any competent judge of such a structure could discover by ordinary vig34 "To constitute willful negli ilance, might authorize a presumpgence, the act done, or omitted to tion of such knowledge and willful be done, must be intended": Breese, neglect": Shelby Co. Board Int. J., in Peoria Bridge Assn. v. Loom- Imp. v. Scearce, 2 Duv. (Ky.) 576. is, 20 Ill. 251. Willful neglect un- As to what constitutes willful negder Ky. St. 1894, ch. 1, § 6, on the lect under the same statute, see part of a bridge company to repair also Lexington v. Lewis, 10 Bush a bridge so as to make it safe for (Ky.) 677. travel, has been held to mean "a knowledge by the company of the Bush (Ky.) 728.

35 Louisville &c. R. Co. v. Case, 9