13

ment11 or collision of two railway-trains;12 the falling of a drum or post used by a contractor in repairing the room in which the servant worked; the sudden and unexplained giving way of a place in the interior of a mine which an employé was required to pass over to reach his work; the breaking of a shank by which a ladle containing molten iron was carried;15 the fall of a punch or press used for stamping or beating tin, which regularly falls when the foot of the operator is on the treadle, but which in the particular instance fell when her foot was not on the treadle;16 the unexplained breaking down of a scaffold while an employé is at work upon it;17 the explosion of a boiler;18 the fact that a box which the foreman of a gang of railway employés has caused to be placed on a hand-car, strikes a stationplatform as the car is passing it, throwing a track-hand riding thereon against the lever of the car;19 the fact that a dumb-waiter, while unloaded, fell from the fifth floor of a warehouse and injured an employé who had inclined his head within the shaft to hear orders given from another floor, as was customary;20 the fact that a railway servant was injured by a defective brakestaff, in the absence of proof that

11 Kinney v. North Carolina R. Co., 122 N. C. 961; s. c. 30 S. E. Rep. 313; Marcom v. Raleigh &c. R. Co., 126 N. C. 200; s. c. 35 S. E. Rep. 423; Wright v. Southern R. Co., 127 N. C. 225; s. c. 37 S. E. Rep. 221. Where a railroad company admits that it knew that its track was not in a safe condition at the point where an employe was injured by the derailment of a hand-car, it will be presumed that the company's negligence in failing to maintain a safe track was the cause of the injury, and the burden is cast on the company to show that the accident was not caused by its negligence: Wilkie v. Raleigh &c. R. Co., 127 N. C. 203; s. c. 37 S. E. Rep. 204.

12 Shuler v. Omaha &c. R. Co., 87 Mo. App. 618. In the absence of such a statute, the presumption being just as strong that the collision resulted from the negligence of a fellow servant as that it resulted from the negligence of the master, there would be no prima facie case of negligence for which the master would be liable: Shuler v. Omaha &c. R. Co., supra. See also, Rouse v. Hornsby, 67 Fed. Rep. 219.

13 Sackewitz v. American Biscuit Man. Co., 78 Mo. App. 144; s. c. 2 Mo. App. Repr. 192.

14 Lentiono v. Port Henry Iron Ore Co., 71 App. Div. (N. Y.) 466; s. c. 75 N. Y. Supp. 755 (plaintiff was walking along a narrow ledge on the edge of a precipice fifty feet deep, when the ledge gave way under him and threw him down the precipice).

15 Coleman V. Mechanics' Iron Foundry Co., 168 Mass. 254; s. c. 46 N. E. Rep. 1005.

16

6 Van Sickel v. Ilsley, 75 Hun (N. Y.) 537; s. c. 58 N. Y. St. Rep. 731; 27 N. Y. Supp. 1113; s. c. aff'd, 149 N. Y. 569 (prima facie evidence that the machine was not in order). 17 Solarz v. Manhattan R. Co., 8 Misc. (N. Y.) 656; s. c. 59 N. Y. St. Rep. 537; 31 Abb. N. Cas. (N. Y.) 426; 29 N. Y. Supp. 1123; s. c. aff'd, 11 Misc. (N. Y.) 715; 32 N. Y. Supp. 1149; Green v. Banta, 48 N. Y. Super. 156; s. c. aff'd, 97 N. Y. 627.

18 Louisville &c. R. Co. v. Lynch, 147 Ind. 165; s. c. 46 N. E. Rep. 471; 44 N. E. Rep. 997; 34 L. R. A. 293. But see Vieth v. Hope Salt &c. Co., 51 W. Va. 96; s. c. 41 S. E. Rep. 187; 57 L. R. A. 410.

19 Railroad Co. v. Northington, 91 Tenn. 56; s. c. 17 S. W. Rep. 880. 20 Winkelman &c. Drug Co. v. Colladay, 88 Md. 78; s. c. 4 Am. Neg. Rep. 645; 40 Atl. Rep. 1078

the defect was open to ordinary observation, or that it was such a defect as would not have been discovered by the railway company by the use of ordinary care;21 the fact that heavily loaded cars were moved on a steep grade, without brakes to control their movements, by reason of which they got from under control and escaped upon the main track, colliding with a train thereon and killing the engineer;22 the fact that a piece of coal flew from the tender of a passing train, and injured a section-hand who was standing at a reasonable distance from the track, notwithstanding evidence tending to show that the coal was properly loaded upon the tender and carefully handled in firing the engine, the evidence affording no explanation as to how the coal happened to fall or to be thrown from the train;23 the unexplained breaking down of machinery while performing its ordinary work.2+

§ 7651. Cases which Deny the Application of the Rule of Res Ipsa Loquitur.-Cases are not wanting which deny the application of the rule of res ipsa loquitur under circumstances where it would be applied by the doctrine of the cases cited in the next preceding paragraph.25 For instance, courts have refused to impute negligence to

21 Missouri &c. R. Co. v. Crowder (Tex. Civ. App.), 55 S. W. Rep. 380 (no off. rep.) (brakestaff had an old crack in it extending angularly two-thirds of the way across it). The duty of inspecting cars having been overlooked, it cannot be presumed that an employé attempting, in the line of his duty, to couple them, was aware of a defective drawhead: Bomar v. Louisiana &c. R. Co., 42 La. An. 983, 1206; s. c. 8 South. Rep. 478; 9 South. Rep. 244.

22

Browning v. Wabash &c. R. Co., 124 Mo. 55; s. c. 27 S. W. Rep. 644. The spreading of a coupling link, which causes a train to separate, whereby a person is injured, is of itself such prima facie evidence of negligence on the part of the railroad company operating the train, as to cast upon it the burden of explanation in an action against it for the resulting injury: Griffin v. Boston &c. R. Co., 148 Mass. 143; s. c. 19 N. E. Rep. 166; 1 L. R. A. 698.

Gulf &c. R. Co. v. Wood (Tex. Civ. App.), 63 S. W. Rep. 164 (no off. rep.). Where it is shown that a coupling pin thrown against the plaintiff while a train was passing, came from the train, it is fair to

infer that the employés of the railroad company placed the pin there, and that the railroad company is responsible therefor, in the absence of evidence to the contrary: Doyle v. Chicago &c. R. Co., 77 Iowa 607; s. c. 42 N. W. Rep. 555; 4 L. R. A. 420.

24 Puget Sound Iron Co. v. Lawrence, 3 Wash. Ter. 226; s. c. 14 Pac. Rep. 869 (but decision reversed for error in instructing jury that the burden of proof is then upon defendant to establish by a clear preponderance of evidence that he was not wanting in ordinary care).

25 Wabash R. Co. v. Farrell, 79 Ill. App. 508; s. c. 31 Chic. Leg. N. 199. As to defective appliances, see generally, Mary Lee Coal &c. Co. v. Chambliss, 97 Ala. 171; s. C. 11 South. Rep. 897; 53 Am. & Eng. R. Cas. 254; The France, 59 Fed. Rep. 479; s. c. 8 C. C. A. 185; Chicago &c. R. Co. v. Kellogg, 55 Neb. 748; s. c. 5 Am. Neg. Rep. 50; 76 N. W. Rep. 462; modifying s. c. 54 Neb. 127; 74 N. W. Rep. 454. Proof of an accident caused by an obstruction on a railroad track does not impose upon the company the burden of negativing negligence, in an action for personal injuries by an employé:

the master from the fact that a trip-hammer of a machine fell and injured a servant, where the cause of its fall could not be accounted for even after a thorough examination of the machine after the accident, but where previous falls of the same hammer had been satisfactorily accounted for and the defects remedied;26 the fact that a telegraphic lineman received a shock from a wire which he was handling, and the probabilities were, upon the evidence, equally strong that the current was caused by lightning as that is was due to the employer's negligence;27 the fact that a stamping-machine, which had always worked satisfactorily before the accident, started of its own accord, injuring an employé, where no defect in it was pointed out by the plaintiff;28 the fact that a boiler fell in consequence of the parting of a link of the chain by which it was held;29 the fact that the step of an engine was loose, where no explanation was offered by the plaintiff as to how it came to be loose;30 the fact that a bolt in a hoisting-machine broke, killing the operator, it appearing that it had been used for several weeks and subjected to greater loads than the one at the time of the accident,-the court taking the view that under such circumstances the presumption was equally strong that there had been a want of care in operating it;31 the fact that slate fell from the roof of a coal mine, injuring a miner ;32 the falling of a steam-pipe in a cigar factory, injuring a woman at work therein, in consequence of the giving way of the hanger supporting it, due to the act of an independent contractor;33 the fact of the giving way of a floor which a female employé was washing, and which she had regularly washed once a week previously to the accident, she seeing nothing to indicate that it was weak;34 the mere fact that a mangle in which a factory-woman had her hand caught, jerked and jarred sometimes, there being no evidence tending to show how the jerking or jarring could have caused the injury;35 the

Denver &c. R. Co. v. McComas, 7 Colo. App. 121; s. c. 42 Pac. Rep. 676.

26 Bien v. Unger, 64 N. J. L. 596; s. c. 46 Atl. Rep. 593.

27

Epperson v. Postal Tel. Cable Co., 155 Mo. 346.

Sargee v. Clark Can Co., 126 Mich. 508; s. c. 8 Det. Leg. N. 88; 85 N. W. Rep. 1105.

2 Chicago Edison Co. v. Moren, 86 Ill. App. 152; s. c. aff'd, 185 Ill. 571; 57 N. E. Rep. 773.

30 Patton v. Texas &c. R. Co., 179 U. S. 658; s. c. 21 Sup. Ct. Rep. 275; aff'g s. c. 37 C. C. A. 56; 95 Fed. Rep. 244.

31 Spille v. Wisconsin Bridge &c. Co., 105 Wis. 340; s. c. 81 N. W. Rep. 397.

32

Knight v. Cooper, 36 W. Va. 232; s. c. 14 S. E. Rep. 999. 33 Hanna V. Gresh (Pa.), 16 Montg. Co. L. Rep. 182.

Surles v. Kistler, 202 Pa. St. 289; s. c. 51 Atl. Rep. 887 (the court reasoning that if the floor was weak, no one had a better opportunity of discovering the fact than she, and the accident, if it happened as alleged, was totally unexpected to her).

Higgins v. Fanning, 195 Pa. St. 599; s. c. 46 Atl. Rep. 102.

mere fact that in some unexplained way a hole appeared in the top of a flue leading from a battery of boilers in a steel and iron mill to a smokestack some distance away, on the same night that a minor employé whose duty required him to pass over the flue, mysteriously disappeared, there being no proof that the boy fell into the hole and the evidence showing that the flue was properly built of the best known material, covered with a strong arch capable of supporting any load that would naturally be put upon it, and was comparatively new, and also recently examined, and no trace of the remains of the boy having been found in the ashes;30 the fact that a freight train separated-this not being an unusual occurrence ;37 the fact that a hook gave way under an extraordinary strain, and the evidence adduced to show that it had an old crack in it, being of such a nature that it was held to constitute a mere scintilla of evidence; as the mere fact of the breaking of a crossbeam fastened to the flanges of an elevated railroad while an employé was at work thereon, in the absence of proof that a proper inspection would have shown the defective nature of the beam;39 the mere fact that the step of a freight-car was loose, and turned while an employé was trying to mount the car at night;40 the mere fact that a coupling link or pin broke,41 the mere fact of a collision of a passenger-train with a freight-train standing on the main track, causing the death of the engineer in charge of the passenger-train,-the court reasoning that a presumption from the fact of the accident arises only in favor of passengers and is grounded upon public policy;42 the fact that a flying stick, from some unexplained source, caught between a pulley and a belt which another employé beside the plaintiff was adjusting thereon, causing the belt to fly off, to catch a plowshare lying on the floor, and then, in its movements, to catch the plaintiff and draw him around the shaft,-the cause of the belt winding around the shaft being the presence of projecting nuts from a coupling on the shaft ;43 the fact that one employed at a mine in the management of the brake whereby the cage in which the workmen ascended and descended was

36 Tunney v. Carnegie, 146 Pa. St. 618; s. c. 22 Pitts. L. J. (N. S.) 219; 29 W. N. C. (Pa.) 215; 23 Atl. Rep. 207.

"Tuck v. Louisville &c. R. Co., 98 Ala. 150; s. c. 12 South. Rep. 168.

Olsen v. Starin, 43 App. Div. (N. Y.) 422; s. c. 60 N. Y. Supp. 134. See also, The Baron Innerdale, 93 Fed. Rep. 492.

39

Stourbridge v. Brooklyn City, R. Co., 9 App. Div. (N. Y.) 129; s. c. 41 N. Y. Supp. 128; 75 N. Y. St. Rep. 586.

40 Baldwin v. Atlantic City R. Co., 64 N. J. L. 232; s. c. 45 Atl. Rep. 810; two judges dissenting.

41 Moore v. Jones, 15 Tex. Civ. App. 391; s. c. 39 S. W. Rep. 593.

42 Smith v. Missouri Pac. R. Co., 113 Mo. 70; s. c. 20 S. W. Rep. 896.

13 Freeberg V. St. Paul PlowWorks, 48 Minn. 99; s. c. 50 N. W. Rep. 1026 (the flying stick was the proximate cause of the injury, and the accident was one the master was not reasonably bound to anticipate).

the master from the fact that a trip-hammer of a machine fell and injured a servant, where the cause of its fall could not be accounted for even after a thorough examination of the machine after the accident, but where previous falls of the same hammer had been satisfactorily accounted for and the defects remedied;20 the fact that a telegraphic lineman received a shock from a wire which he was handling, and the probabilities were, upon the evidence, equally strong that the current was caused by lightning as that is was due to the employer's negligence;27 the fact that a stamping-machine, which had always worked satisfactorily before the accident, started of its own accord, injuring an employé, where no defect in it was pointed out by the plaintiff ;28 the fact that a boiler fell in consequence of the parting of a link of the chain by which it was held;20 the fact that the step of an engine was loose, where no explanation was offered by the plaintiff as to how it came to be loose;30 the fact that a bolt in a hoisting-machine broke, killing the operator, it appearing that it had been used for several weeks and subjected to greater loads than the one at the time of the accident,-the court taking the view that under such circumstances the presumption was equally strong that there had been a want of care in operating it;31 the fact that slate fell from the roof of a coal mine, injuring a miner ;32 the falling of a steam-pipe in a cigar factory, injuring a woman at work therein, in consequence of the giving way of the hanger supporting it, due to the act of an independent contractor;33 the fact of the giving way of a floor which a female employé was washing, and which she had regularly washed once a week previously to the accident, she seeing nothing to indicate that it was weak;34 the mere fact that a mangle in which a factory-woman had her hand caught, jerked and jarred sometimes, there being no evidence tending to show how the jerking or jarring could have caused the injury;35 the

Denver &c. R. Co. v. McComas, 7 Colo. App. 121; s. c. 42 Pac. Rep. 676.

26 Bien v. Unger, 64 N. J. L. 596; s. c. 46 Atl. Rep. 593.

"Epperson v. Postal Tel. Cable Co., 155 Mo. 346.

Sargee v. Clark Can Co., 126 Mich. 508; s. c. 8 Det. Leg. N. 88; 85 N. W. Rep. 1105.

Chicago Edison Co. v. Moren, 86 Ill. App. 152; s. c. aff'd, 185 Ill. 571; 57 N. E. Rep. 773.

30 Patton v. Texas &c. R. Co., 179 U. S. 658; s. c. 21 Sup. Ct. Rep. 275; aff'g s. c. 37 C. C. A. 56; 95 Fed. Rep. 244.