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;36 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 ;38 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;30 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; the mere fact that a coupling link or pin broke, 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;' 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

.43

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.

43 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).

lowered, was but seventeen years of age, and permitted the cage to fall, injuring an occupant, the boy being experienced in the work, having performed it satisfactorily for over seven months in the defendant's mine and for nearly two years in another mine,—the view being that this did not raise, as matter of law, a presumption of negligence against the mineowner in employing an incompetent servant or in setting an immature servant at a task which he was not qualified to perform; the fact that a man at work in a starch factory was injured by the covers of a boiler being lifted by steam, and the starch which was contained therein being blown out upon him, in the absence of any further proof tending to show negligence; 45 the fact that a stage fell in consequence of the iron rods by which it was supported being unable to sustain the weight, two of them having broken, the mere fact that an employé got his foot caught in a split switch,—the court taking the view that in order to recover damages he must show not only how the switch was constructed, but also that it was not of a proper and generally approved kind, or, if of a proper and generally approved kind, that it was of a faulty and improper construction;17 the mere fact that a fire occurred in a mine,48 the mere fact of a derailment which took place while the engine was being run with the tender in front, which was customary on the particular train;49 the mere fact that a servant was injured while standing on a scaffold in the act of raising one end of a shaft which weighed four hundred pounds; the mere fact that a hook broke, causing injury to a servant, this not being evidence that it was so unsafe as to charge the master with negligence in furnishing it, and this although there was

em

"Kansas &c. Coal Co. v. Brownie, 60 Ark. 582 (no presumption of negligence from mine-owner ploying boy fourteen years old as a trapper, where ordinarily careful and prudent men in same business so employ boys of that age); Neal v. Gillett, 23 Conn. 437 (defendants, thirteen and sixteen years old, playing ball in highway, caused plaintiff's horse to run away-no presumption of negligence from their age); Walkowski v. Penokee &c. Consol. Mines, 115 Mich. 629; s. c. 4 Det. Leg. N. 1005; 41 L. R. A. 33; 73 N. W. Rep. 895 (citing • Sutherland v. Troy &c. R. Co., 125 N. Y. 737) (telegraph-operator seventeen years old-no presumption of negligence in employing him from his age alone); Molaske v. Ohio Coal Co., 86 Wis. 220 (presumption of negligence from employment of boy under fourteen

years of age-no presumption of capacity until fourteen years old).

45 Blanchette v. Border City Man. Co., 143 Mass. 21. There was no evidence that the boiler was improperly constructed, or out of repair. For aught that appeared, the accident might have been due to plaintiff's carelessness in turning steam into the boiler, or in opening the covers of the boiler, which were held closed by a button: Blanchette v. Border City Man. Co., supra.

46

16 Pellerin v. International Paper Co., 96 Me. 388; s. c. 52 Atl. Rep. 842. 47 Lane v. Missouri Pac. Co., 64 Kan. 755; s. c. 68 Pac. Rep. 626.

48 Hughes v. Oregon Imp. Co., 20 Wash. 294; s. c. 55 Pac. Rep. 119. 49 Kuhns v. Wisconsin &c. R. Co., 70 Iowa 561.

50 Garden City Wire Spring Co. v. Boecher, 94 Ill. App. 96.

expert evidence tending to show that it was unscientifically constructed and inadequate for the work for which it was used;51 the mere fact that a chain by which timbers were lowered into a mine, broke while an effort was being made to lift or swing a timber on the car at the bottom of a mine 52 the mere fact that the footboard of an engine gave way, injuring an employé, this not being sufficient to support the charge that the rod supporting it had become unsound and unfit for use;53 the mere fact that a car in which a servant was riding became derailed, injuring him, the mere fact of the breaking of a chain which was being used in raising a derailed and wrecked car;55 the fact that the ground at the edge of a wheel-pit in a foundry, containing burning charcoal, gave way beneath the feet of a servant, allowing him to fall in, since the caving in may have been at the very edge, or the result of something for which the employer was not responsible;56 the fact that an employé of an elevated railroad company was injured by a block of wood falling from the structure, there being no evidence tending to show whether it was a part of the structure, or whether it was merely lying upon it, or whether it was in the hands of a fellow servant, or whether it fell from a train which was passing over the road at the time;57 the mere fact that an employé employed to store ice in the defendant's ice-house, was injured by the unexplained fall of three sections of an adjustable platform running along the face of the ice-house, there being nothing in the evidence to suggest whether it was due to the negligence of the master rather than to that of fellow servants;58 the fact that personal injuries were caused by the fall of an elevator, since the question is not whether the elevator was or was not defective, but whether or not the master was chargeable with notice of its defective condition;59 the fact that a stepladder on which a servant was at work broke, injuring him, the servant being himself charged with the duty of keeping the ladder in a safe condition.

51 Hart &c. Man. Co. v. Fima, 85 Ill. App. 310.

62 Colfax Coal &c. Co. v. Johnson, 52 Ill. App. 383 (the same chain had been frequently successfully used for the same purpose. No defect in it was pointed out, which would be necessary in order to recover, as well as to show that it was a defect which a proper inspection would have discovered).

53 Peoria &c. R. Co. v. Hardwick, 48 Ill. App. 562; s. c. on second appeal, 53 Ill. App. 161.

34 Minty v. Union Pac. R. Co., 2 Idaho 471; s. c. 2 Idaho (West ed.)

437; 21 Pac. Rep. 660; 4 L. R. A. 409.

Brymer v. Southern Pac. Co., 90 Cal. 496; s. c. 27 Pac. Rep. 371. 50 Cosgrove v. Filler &c. Co., 112 Wis. 457; s. c. 88 N. W. Rep. 220.

Nolan v. Brooklyn Heights R. Co., 68 App. Div. (N. Y.) 219; s. c. 74 N. Y. Supp. 120.

58 Fink v. Slade, 66 App. Div. (N. Y.) 105; s. c. 72 N. Y. Supp. 821.

50 McGregor v. Reid &c. Co., 76 Ill. App. 610; s. c. 3 Chic. L. J. Wkly. 299.

60 Drum v. New England Cotton Yarn Co., 180 Mass. 113; s. c. 61 N. E. Rep. 812.

§ 7652. In Case of Accidents Arising under Obscure Circumstances. In case of accidents to employés arising under obscure circumstances, generally accidents which have resulted in death,-where the cause of the accident is left by the evidence a matter of mere conjecture, suspicion, or surmise, and where it may have been caused by the negligence of the deceased himself, or by that of a fellow servant, or by a mere casualty for which no one is responsible, courts have often refused to apply the rule of res ipsa loquitur,-as, for example:

Where a railroad brakeman in some unexplained way was thrown from the cars and was found dead upon the track,61 where a brakeman, directed to make a coupling, either fell or was knocked under the cars and injured, and no one saw the accident, and the cause or manner of it was not shown,-the court reasoning that it is not sufficient merely to show the negligence of the defendant and a possibility that the injury complained of was caused thereby, and that the fact that an injury to an employé occurred in point of time after the negligence of the master, is not sufficient to show the relation of cause and effect between the negligence of the master and the injury;62 where a brakeman fell from a moving train and was killed, the evidence failing to show how he fell, what he was doing when he fell, whether he was in the exercise of due care at the time, whether or not his death was instantaneous (under the Massachusetts rule), or whether he endured any conscious suffering before his death (under the Massachusetts rule). Similarly, it will not be presumed in the case of the death of

63

61 Short v. New Orleans &c. R. Co., 69 Miss. 848.

62 Illinois Cent. R. Co. v. Cathey, 70 Miss. 332; s. c. 12 South. Rep. 253 (prior to the adoption of Const. 1890).

Corcoran v. Boston &c. R. Co., 133 Mass. 507, per curiam. In this case the declaration alleged that injury was caused by intestate being knocked from a side-ladder on a freight-car, on which it was his duty to go while passing through a rocky cut, by an accumulation of ice and snow negligently allowed to be on the sides of the cut. The evidence tended to show that on the night of the accident the ice near the center of the cut barely cleared the cars; that intestate was last seen descending from the top of a house-car to a platform-car to set the brake, while going through the cut; that his next duty was to ascend a side-ladder on a house-car in the rear of the platform-car, in

order to set the brake on that car; that his lighted lantern was seen on top of this car, and was afterward found there. The train was moving toward the east, and the greater part of intestate's body was found one-fourth mile to the east of the center of the cut; but just east of the center of the cut, where the ice projected farthest, an impression

was found in the snow beside the track, indicating that something heavy had fallen there. Two hundred feet east of this point the first blood-spots were found, and portions of the body were found from here onward, together with indications on the tracks of the wheels having passed over portions of the body. It was the duty of the section-men to keep the cut clear from ice. Such was the evidence upon which this ruling was made: Corcoran v. Boston &c. R. Co.,

supra.

a brakeman by falling from a train, that he fell from a particular car in the train shown to have been defective.**

ARTICLE III. PRESUMPTIONS AS TO PARTICULAR FACTS.

§ 7654. Laws of Sister State or Foreign Country.-The courts of one State cannot assume that the laws of another State as to safeguards to be observed by moving trains are the same as those of the former, since the subject is generally regulated by statutes and ordinances. But it has been held that the rule of law existing in Texas requiring a sleeping-car company to use reasonable care to protect the property of a passenger from theft, will be presumed to be the same