mine, and whether a man using reasonable diligence would have done it.36

§ 7640. Rule Excludes Inevitable Accidents.—Where a man, proceeding in a lawful business, exercises reasonable care, the law does not make him an insurer of others against those consequences of his actions which reasonable care and foresight could not have prevented. The law justly ascribes such consequences to inevitable misfortune, or to the act of God, and leaves the harm resulting from them to be borne by him upon whom it falls.37 The contrary rule would obviously be against public policy, because it would impose so great a restraint upon freedom of action as materially to check human enterprise 38 In such cases, therefore, the law contents itself with inquiring whether any other person than the sufferer was at fault; and if so, it requires him to reimburse the sufferer for the loss he has sustained, unless the sufferer himself was also at fault. This doctrine, however, is only predicated of unforeseen accidents which result from the doing of lawful acts. If a person do an act which is wrongful per se, or in the nature of a public nuisance, he becomes in re

36 Regina v. Haines, 2 Car. & Kir. 368. See also, Regina v. Barrett, 2 Car. & Kir. 343; Regina v. Allen, 2 Car. & P. 153.

37 Bizzell v. Booker, 16 Ark. 308; Chenall v. Palmer Brick Co., 117 Ga. 144; s. c. 43 S. E. Rep. 443; Bennett v. Ford, 47 Ind. 264; Brown v. Kendall, 6 Cush. (Mass.) 292; Sullivan v. Scripture, 3 Allen (Mass.) 534; Vincent v. Stinehour, 7 Vt. 62; Roche v. Milwaukee Gas-Light Co., 5 Wis. 55; Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 4 Modern 405; Keighley's Case, 10 Coke 139; Alderson v. Waistell, 1 Car. & Kir. 358; Blyth v. Birmingham Water-Works Co., 11 Exch. 781; s. c. 25 L. J. (Exch.) 212; Hammack v. White, 11 C. B. (N. S.) 588; s. c. 8 Jur. (N. S.) 796; 31 L. J. (C. P.) 129; 10 Week. Rep. 230; 5 L. T. (N. S.) 676; Cox v. Burbridge, 13 C. B. (N. S.) 430; s. c. 9 Jur. (N. S.) 970; 32 L. J. (C. P.) 89; 11 Week. Rep. 435; Harvey v. Dunlop, Lalor 193; Holmes v. Mather, L. R. 10 Exch. 261; s. c. 33 L. T. (N. S.) 361; 23 Week. Rep. 864; 44 L. J. (Exch.) 176. The old law, it must be confessed, went very far towards the rule which makes men quasi-insurers of their acts; and there are some modern

cases which travel in the same rut. Thus, in Jennings v. Fundeburg, 4 McCord (S. C.) 161, the doctrine is laid down that to excuse a trespass on the ground of accident, it is not enough that the party did not intend it, but it must appear that it was unavoidable, and without any the least fault on his part; "and," the court continued, "the books go so far as to say that if by an extraordinary degree of circumspection, far greater than is ordinarily practiced in the affairs of life, he might have guarded against it, he shall be liable." In Beach v. Parmenter, 23 Pa. St. 196, Woodward, J., says, in effect, that the accident which will excuse the defendant must have been an inevitable accident, such as no human foresight could have prevented. "It must appear," says McKinney, J., in Tally v. Ayres, 3 Sneed (Tenn.) 677, 680, "that the injury was unavoidable, or the result of some superior agency, without the imputation of any degree of fault to the plaintiff."

as This subject is thoughtfully discussed by O. W. Holmes, Jr., in the American Law Review for January, 1880.

spect of it an insurer of the public, and is liable for any injury which may happen in consequence of it to a person in the exercise of ordinary care, irrespective of any question as to the degree of skill or diligence exercised by himself, his agents, or servants, to prevent such an injury.39 Thus, A. and B. are engaged in fighting; while so engaged, A. unintentionally strikes C. A. must pay damages to C., and the absence of an intent to injure C. can only be heard in mitigation of damages. 40

§ 7641. Burden of Proof Shifts after Negligence is Shown.-"The rule [res ipsa loquitur] relates simply to the probative force of evidence. It does not dispense with the necessity of evidence of the defendant's negligence in any case, but on the contrary expressly requires it. * * [It] can have no application in the absence of any evidence that it was the defendant's negligence which caused the injury sustained." In other words, the presumption merely aids the plaintiff in the discharge of his burden.12 Hence when, under the foregoing rules, the plaintiff has introduced evidence sufficient, as matter of law, to charge the defendant with damages, the burden of proof is said to shift,-the defendant must excuse himself if he would avoid the payment of damages. To this statement it must be added that in certain jurisdictions it is also necessary for the plaintiff to show, prima facie, that he himself was in the exercise of ordinary care.**

43

§ 7642. Rule of Res Ipsa Loquitur Not Always Applicable where Contractual Relation Exists.-That there are exceptions to the general doctrine that there is a presumption of negligence where injuries

"Bizzell v. Booker, 16 Ark. 308; Pfau v. Reynolds, 53 Ill. 212; Anderson v. Dickey, 1 Robt. (N. Y.) 238; s. c. 26 How. Pr. (N. Y.) 105; Baxter v. Warner, 6 Hun (N. Y.) 585; Congreve v. Morgan, 18 N. Y. 84; Congreve v. Smith, 18 N. Y. 79; Creed v. Hartman, 29 N. Y. 591; Davenport v. Ruckman, 10 Bosw. (N. Y.) 20; Dygert v. Schenck, 23 Wend. (N. Y.) 446; Sexton v. Zett, 44 N. Y. 430; Storrs v. Utica, 17 N. Y. 104.

40 James v. Campbell, 5 Car. & P. 372. Compare West v. Forrest, 22 Mo. 344.

"Fink v. Slade, 66 App. Div. (N. Y.) 105; s. c. 72 N. Y. Supp. 821. See generally, Lindall v. Bode, 72 Cal. 245; s. c. 13 Pac. Rep. 660; Wilkinson v. Pensacola &c. R. Co., 35 Fla. 82; s. c. 17 South. Rep. 71; Baltimore &c. R. Co. v. Greer, 103

Ill. App. 448; Newell v. Rahn, 64 Ill. App. 249; Davidson v. Davidson, 46 Minn. 117; s. c. 48 N. W. Rep. 560; Omaha &c. R. Co. V. Clarke, 39 Neb. 65; s. c. 23 L. R. A. 504, 507; 57 N. W. Rep. 545; Omaha Street R. Co. v. Leight, 49 Neb. 782; s. c. 69 N. W. Rep. 111; Adams v. Union R. Co., 80 App. Div. (N. Y.) 136; s. c. 80 N. Y. Supp. 246; 15 N. Y. Ann. Cas. 386; Jones v. Union R. Co., 18 App. Div. (N. Y.) 267; s. c. 46 N. Y. Supp. 321; Dube v. Reg., 3 Can. Exch. 147.

42 Wiley v. Bondy, 23 Misc. (N. Y.) 658; s. c. 52 N. Y. Supp. 68.

43 Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; Treadwell v. Whittier, 80 Cal. 574; s. c. 5 L. R. A. 498; 6 Rail. & Corp. L. J. 505; 13 Am. St. Rep. 175; 22 Pac. Rep. 266.

"See Vol. I, § 365.

are suffered by a passenger,1 is well illustrated by a case in Pennsylvania. A female passenger, after the train had arrived safely at its destination, in the daytime and after the other passengers had left the car, in attempting to get out, sustained a severe injury. So far as the evidence showed, it happened in this way: Her husband assisted her in alighting from the car. On stepping down from the lowest step to the platform she advanced her left foot first to the ground, leaning her right foot upon the step, and, while in that position, without any apparent cause, her right knee cap snapped and was fractured. There was no slipping nor stumbling nor any external injury by a blow or force of any kind. It would seem, upon this statement of facts, that there was no possible connection between the injury which was thus received and any failure of duty on the part of the carrier, and certainly there are few courts in the country where such a case would be permitted to go to the jury. It was nevertheless held in Pennsylvania, where it would seem the courts in such cases are more liberal in allowing them to go to a jury than in some other States, that the case was rightly left to the jury. But it was also held that the trial court erred in giving the jury an instruction to the effect that, if, the passenger, without any negligence on her part, received an injury in descending from the car, the company was prima facie guilty of negligence, and the burden of proof was on the defendant to show that it was not guilty. The court said: "The general rule is that a party who alleges negligence as the basis of a claim for damages is bound to prove the fact alleged, and the extent of the injury if more than nominal damages are claimed; but in some cases slight proof only is required to justify the presumption of negligence. The mere circumstances attending the injury when put in proof may be enough to cast the burden of exculpation on the defendant. If a passenger seated in a railway car is injured in a collision or by the overthrow of a car or breaking of a wheel, or axle, or other part of the machinery, he is not required to do more in the first instance than prove the fact and show the nature and extent of his injury. A prima facie case of negligence is thus made out, and the onus is cast upon the carrier to disprove negligence. It is reasonable that it should be so, because the company has in its possession and under its control almost exclusively the means of knowing what occasioned the injury and explaining how it occurred, while, as a general rule, the passenger is destitute of all knowledge that would. enable him to present the facts and fasten negligence upon the company in case it really existed. The facts of the present case are very

45 See ante, § 7635.

* * *

different. The cars were at rest on the track; there was no jar or breaking of machinery; Mrs. Napheys, with the assistance of her husband, was descending the step from the platform of the car. They had every opportunity of seeing and knowing where she was going and controlling her movements. If the lower step was inconveniently or dangerously high for her in the condition she was, she and her husband had as good an opportunity as any one else of knowing the facts. If they had even a suspicion that it was even in the least degree unsafe for her to take the last step, there was no urgent necessity for her to do so. The train had reached its destination, and there was no occasion for haste in leaving the car. If they had any apprehension of danger or even inconvenience in descending from the lower step, there was nothing to prompt them to incur the risk. They might have called on those in charge of the train to provide a better and more convenient means of egress, if they had deemed it necessary. Taking the uncontradicted facts of the case as they are presented, there existed no reason for relaxing the general rule that he who alleges negligence as the basis of the claim for damages is bound to prove it affirmatively.”46

§ 7643. Right to Rely on Presumption Not Waived by Pleading Particular Negligent Act.-The plaintiff, in an action for personal injuries, is not deprived of his right to rely upon the doctrine of res ipsa loquitur by reason of having averred the particular act of negligence complained of, where such act is the one which the legal inference of negligence tends to establish.47

ARTICLE II. DOES THE RULE OF RES IPSA LOQUITUR APPLY IN THE RELATION OF MASTER AND SERVANT?

§ 7646. A Recent Deliverance and Disagreement on this Question in a Federal Court.-In the somewhat recent case of Highland Boy Mining Co. v. Pouch,1 it was held, by the United States Circuit Court of Appeals for the Eighth District, that where, in an action by a servant against his master, the trial court had charged that the plaintiff could not complain or recover because of the defendant's negligence in failing properly to secure any other part of the mine beyond that in which the plaintiff was injured as alleged, and that the defendant was not an insurer of the plaintiff's safety, but was merely bound to exercise ordinary care for the plaintiff's safety under the circumstances,—it was not error for the court to refuse to charge specifically that the happening of the accident, of itself, was not evidence of negligence. Upon this point, Mr. Circuit Judge Thayer, who delivered the opinion of the court, said: "It is doubtless proper, in some cases, to advise a jury that the mere happening of an accident is no evidence of negligence. An instruction of that kind is in the nature of a commentary upon the evidence. But we doubt the propriety of giving an instruction of that character in such a case as the one in hand, and are of the opinion that the refusal of such an instruction in a case of this kind ought not to be regarded as a material error. Excavations underneath the ground, such as stopes and levels in mines, can be made safe by the exercise of proper care in timbering them, and they are made safe so that men work therein without much danger. They do not fall when the walls thereof are properly supported by timbers or other supports. When, therefore, an excavation, which has been completed and timbered, collapses without any seismic disturbance or an explosion of any sort, men will naturally infer that the collapse was caused by insufficient supports, there being no other assignable cause."

§ 7647. Dissenting Opinion of Sanborn, J.-Mr. Circuit Judge Sanborn dissented. In the course of his dissenting opinion, he said: "Again, it was error for the court to refuse to charge, as it did, that the mere happening of the accident raised no presumption that the defendant was guilty of negligence which caused the injury to the plaintiff. The rule is well settled that the breakage or fall of machinery, platforms, buildings, stopes, caves and structures of every kind in the use of employés raises no presumption that the injury resulting to the latter was caused by the negligence of their employers; but the burden of proof is upon the servants to show, by evidence outside the break or fall, not only that it was caused by a fault

1124 Fed. Rep. 148.