§ 7664. Objects in Highway Calculated to Attract Children.-A presumption of negligence will arise where objects attractive to children are piled or placed on sidewalks in such a manner that they may be easily overthrown. Thus, the slipping of a large flag stone which stood on a sidewalk leaning against a tree in front of the defendant's premises, causing an injury to a five-year-old child playing about it, was held to raise a presumption of negligence against the defendant.19 And this was the case where lumber was piled on a sidewalk exceeding the height provided by ordinance, and a playing child was injured by the fall of the pile.20

§7665. Unattended and Runaway Horses.-Generally, negligence will not be presumed from the mere fact that a horse ran away,21 unless the horse was unattended.22 Negligence of persons conducting a public exhibition of horse-racing cannot be presumed from the mere fact that a spectator was injured by a runaway horse while within the place reserved for spectators; as it is a matter of common knowledge that invited spectators drive their own vehicles within such inclosures, and, such being the case, the evidence would leave it uncertain whether the negligence might not be that of a fellow spectator.23 A prima facie case of negligence has been held made out by evidence that a horse, with part of a wagon attached, belonging to the defendant, a billposter, ran into the plaintiff on the street, that the defendant had a billboard near this place, and that the horse had twice before run away. 24

§7666. Unsafe Premises. When the duty is imposed upon a person to keep premises in a safe condition, and an accident results from an unsafe condition of the premises, negligence in the person on whom the duty is cast is presumed, and the burden of proof is cast upon him to show that he used reasonable care and diligence.25 Thus, the fall of a building without any apparent cause, in the absence of ex

(N. Y.) 556; s. c. 64 N. Y. St. Rep. 313; 31 N. Y. Supp. 649; Davis v. Kalfelz, 22 Misc. (N. Y.) 602; s. c. 50 N. Y. Supp. 928.

23 Hart v. Washington Park Club, 157 Ill. 9; s. c. 29 L. R. A. 492; 48 Am. St. Rep. 298; 41 N. E. Rep. 620.

24 Thane v. Douglass, 102 Tenn. 307; s. c. 52 S. W. Rep. 155.

Cunningham v. Union Pac. R. Co., 4 Utah 206; s. c. 7 Pac. Rep. 795.

planatory circumstances will raise a presumption of failure of the owner to exercise ordinary care to keep it in safe condition.26 So, testimony by the plaintiff, injured by a fall of a dumb waiter in an apartment house owned by the defendant, that the rope by which the dumb waiter was operated was defective, and that the defect was called to the notice of the janitor, and that the accident was caused by the breaking of a rope which, if sufficient, would have held the load put upon the dumb waiter, has been held prima facie evidence of the defendant's hegligence.27 But the mere fall of a ceiling injuring a tenant is not sufficient to charge the landlord with negligence, in the absence of any evidence to show upon whom the duty of keeping the ceiling in repair was cast.28

§ 7667. Falling Objects Generally.-Evidence that a person lawfully on a sidewalk or highway was injured by some part of a structure overhanging the street and attached to a building falling on him, raises a presumption of negligence and imposes upon the owner the burden of showing that he used reasonable care in its construction and maintenance and that the accident happened without fault or negligence on his part.29 In like manner, negligence of the owners of a shop will be presumed from the fall of a mirror upon a customer.30 So, the fall of a glass insulator from a telephone pole, and an injury to a passer-by, has been held to establish a prima facie case of negligence upon the part of the telephone company, in the absence of any explanatory circumstances.31

20 Patterson v. Jos. Schlitz Brewery Co., 16 S. D. 33; s. c. 91 N. W. Rep. 336; Ryder v. Kinsey, 62 Minn. 85; s. c. 64 N. W. Rep. 94. But see Weideman v. Tacoma R. &c. Co., 7 Wash. 517; s. c. 35 Pac. Rep. 414.

27 Holzmann v. Monell, 19 App. Div. (N. Y.) 238; s. c. 46 N. Y. Supp. 129.

Schanda v. Sulzberger, 7 App. Div. (N. Y.) 221; s. c. 40 N. Y. Supp. 116.

29 See ante, § 7635; Morris v. Strobel &c. Co., 81 Hun (N. Y.) 1; s. c. 62 N. Y. St. Rep. 572; 30 N. Y. Supp. 571; 27 Chic. Leg. N. 111; 2 Ohio Leg. N. 59; Reynolds v. Van Beuren, 10 Misc. (N. Y.) 703; s. c. 64 N. Y. St. Rep. 633; 31 N. Y. Supp. 827 (fall of sign); Atchison v. Plunkett, 8 Kan. App. 308; s. c. 55 Pac. Rep. 677; St. Louis &c. R. Co. v. Hopkins, 54 Ark. 209; s. c. 15 S. W. Rep. 610; 12 L. R. A. 189

(wooden sign). The fall of material from a scaffold used in the construction of a building contiguous to the sidewalk of a public street in a large city, in connection with proof that the sidewalk was not covered with platforms, barricaded, or in any wise guarded, is sufficient to raise a presumption that the builder was negligent: Dohn v. Dawson, 84 Hun (N. Y.) 110; s. c. 32 N. Y. Supp. 59; 65 N. Y. St. Rep. 221.

30 Sangster v. T. Eaton Co., 21 Ont. App. 624. The falling of the shade of a lamp affixed to the roof of a passenger car is presumed, in the absence of evidence, to be due to the negligence of the railroad company: White v. Boston &c. R. Co., 144 Mass. 404.

31 Quill v. Empire State Tel. &c. Co., 92 Hun (N. Y.) 539.

§ 7668. Fall of Electric Wires.-The presumption of negligence is strong where wires charged with electricity have become broken and are allowed to dangle over highways, causing injuries to persons and animals coming in contact therewith.32 And this presumption of negligence has been held not overcome by evidence that the wire which was the support of a trolley wire was the best that the market afforded, or that the line was frequently inspected, where such facts rested on the testimony of interested persons, and when a device called the "breaker system" was in general use which, if properly adjusted, would automatically cut off the current if the wire touched the ground.3

33

§ 7669. Fall of Elevator.-The fact that the cable broke and an elevator in a sidewalk used to raise material from a cellar fell, is some evidence of negligence on the part of the person maintaining the elevator.3 34

§ 7670. Violation of Speed Ordinance.-Where the fact that a train was running at a rate of speed prohibited by an ordinance is established, there is a presumption that a personal injury inflicted by the train was caused by the negligence of the company running such train, and such presumption must be rebutted by the defendant.35 But the fact that a train, at the time it struck a person, was running at a greater speed than permitted by a municipal ordinance, but not at a high or dangerous rate of speed, while it raises a presumption of negligence, will not justify an inference that the injury was willful or wanton.3 36

§ 7671. Defective Railroad Crossings.-Evidence that an accident was due to the defective condition of a crossing makes a prima facie case of negligence against a railroad required to maintain it.37 So,

32 Denver Consol. R. Co. v. Simpson, 21 Colo. 371; s. c. 31 L. R. A. 566; 41 Pac. Rep. 499; Larson v. Central R. Co., 56 Ill. App. 263; Gannon v. Laclede Gaslight Co., 145 Mo. 502; s. c. 47 S. W. Rep. 907; 46 S. W. Rep. 968; Clarke v. Nassau Electric R. Co., 9 App. Div. (N. Y.) 51; s. c. 41 N. Y. Supp. 78; Jones v. Union R. Co., 18 App. Div. (N. Y.) 267; s. c. 46 N. Y. Supp. 321; Snyder v. Wheeling Electrical Co., 43 W. Va. 661; s. c. 39 L. R. A. 499; 28 S. E. Rep. 733; Memphis St. R. Co. v. Kartright, 110 Tenn. 277; s. c. 75 S. W. Rep. 719. But see Kepner v. Harrisburg Traction Co., 183 Pa. St. 24; s. c. 38 Atl. Rep.. 416.

33 O'Flaherty v. Nassau Elec. R. Co., 34 App. Div. (N. Y.) 74; s. c. 54 N. Y. Supp. 96; 58 Alb. L. J. 347.

34 Kennedy v. McAllaster, 31 App. Div. (N. Y.) 453; s. c. 52 N. Y. Supp. 714. See also, Hartford Deposit Co. v. Sollitt, 172 Ill. 222; s. c. 50 N. E. Rep. 178; aff'g s. c. 70 Ill. App. 166.

35 Alabama &c. R. Co. v. Lowe, 73 Miss. 203; s. c. 19 South. Rep. 96; Chicago &c. R. Co. v. Smith, 77 Ill. App. 492.

36 Chicago &c. R. Co. v. Argo, 82 Ill. App. 667.

37 Wabash R. Co. v. De Hart, 32 Ind. App. 62; s. c. 65 N. E. Rep.

192.

where it was claimed that an injury was willfully inflicted, but it was not shown that the engineer had knowledge of the condition at the crossing, it was held that this omission did not preclude a recovery, since it would be presumed that the railroad company informed the engineer of all the perils and dangers incident to the operation of his train.38

§ 7672. Presumption of Right-Acting in Crossing Accidents.-The discordant views of courts on the question of the presumption of the exercise of due care by one killed in a crossing accident have been noted and discussed elsewhere.39 Jurisdictions which recognize the instinct of self-preservation and right-acting as a principle of the law of contributory negligence do not, however, go to the length of making the presumption a conclusive one.10 Plainly, the presumption will not be indulged where there are numerous witnesses who saw the acci

dent and testify to the circumstances under which it occurred," or where, from the natural features of the locality, it is apparent that had deceased looked, he could have avoided the accident,12 or where the injured person survives the accident and direct proof of the circumstances is to be had.43

§ 7673. Failure to Sound Crossing Signals.—The failure of an engineer to sound signals by bell or whistle when approaching a crossing, as prescribed by statute, will raise the presumption that the injuries received by one who drove upon the track were caused by such negligent omission, unless the plaintiff's own fault is manifest." Where the negligence charged is the failure to give the statutory signals, by ringing the bell or blowing the whistle, the onus is on the plaintiff to prove that both the ringing of the bell and the blowing of the whistle were neglected, as, if either is done, it is sufficient.45 The burden is on the plaintiff to prove affirmatively the facts which impose upon a railroad company the duty of giving a cautionary signal in addition to that required by statute.40

§7674. Animals Killed or Injured on Railroad Tracks.-In most States a statutory presumption of negligence on the part of the rail

Waterloo &c. R. Co., 120 Iowa 640; s. c. 95 N. W. Rep. 161; Crawford v. Chicago &c. R. Co., 109 Iowa 433; s. c. 80 N. W. Rep. 519. That the witnesses who could have testified to the due care of deceased, killed at a crossing, are all dead, does not change the rule that absence of evidence of due care on the part of the deceased will defeat the action: Day v. Boston &c. R. Co., 96 Me. 207; s. c. 52 Atl. Rep. 771.

"Smith v. City &c. R. Co., 29 Or. 539, 546; s. c. 46 Pac. Rep. 136, 780; 5 Am. & Eng. R. Cas. (N. S.) 163; Chicago v. Gibbons, 65 Ill. App. 550.

St. Louis &c. R. Co. v. Martin, 61 Ark. 549; s. c. 33 S. W. Rep. 1070; Malott v. Hawkins, 159 Ind. 127; s. c. 63 N. E. Rep. 308; McAuliffe v. New York Cent. &c. R. Co., 83 N. Y. Supp. 200; O'Reilly v. Brooklyn Heights R. Co., 82 App. Div. (N. Y.) 492; s. c. 81 N. Y. Supp. 572.

Pittsburgh &c. R. Co. v. Seivers, 162. Ind. 234; s. c. 67 N. E. Rep. 680; Pittsburgh &c. R. Co. v. Fraze, 150 Ind. 576; s. c. 50 N. E. Rep. 576.

"See Vol. II, § 1587. See also,

Crumpley v. Hannibal &c. R. Co., 111 Mo. 152; s. c. 19 S. W. Rep. 820; Bishop v. Southern R. Co., 63 S. C. 532; s. c. 41 S. E. Rep. 808; Atlantic &c. R. Co. v. Reiger, 95 Va. 418; s. c. 28 S. E. Rep. 590. Failure to give signals of the approach of a railroad train to a crossing as required by law constitutes prima facie negligence in an action for the killing of a small child on the track, although it was too young to heed such signals, where the signals might have enabled the parent to prevent the accident: Chicago &c. R. Co. v. Logue, 158 Ill. 621; s. c. 42 N. E. Rep. 53; aff'g s. c. 58 Ill. App. 142.

45 The burden of proof is on the plaintiff to show that the bell was not rung continuously or alternately with the sounding of the whistle for eighty rods from and until the engine passed a crossing at which plaintiff's intestate was killed: Hubbard v. Boston &c. R. Co., 159 Mass. 320; s. c. 34 N. E. Rep. 459.

40 Siracusa v. Atlantic City R. Co., 68 N. J. L. 446; s. c. 53 Atl. Rep. 547.