64

unexplained derailments or collision. Where, however, as in Iowa, a statute makes it a misdemeanor to alight from a moving car without the consent of the conductor, one suing for injuries incurred while so alighting has the burden to prove the conductor's consent. A person riding in the conveyance of a common carrier palpably designed for the transportation of passengers will be presumed to be lawfully there and to occupy the relation of a passenger. But this rule will not apply in case of injuries to a person on a train manifestly designed for freight, even though a caboose is attached.

65

66

§ 7681. Master's Knowledge of Dangers of Service.-There is a presumption that an employer is familiar with the dangers ordinarily accompanying the business in which he is engaged."7

§ 7682. Competency and Habits of Fellow Servants.-The incompetency of an employé cannot be presumed from the fact of an accident in the course of his employment;68 and, on this point, it will be presumed, in the absence of evidence, that the master made proper inquiries as to the fitness of an employé before engaging him." The presumption that the master had used diligence in the employment of a competent fellow servant will not be overcome by evidence that sometime before the accident, the servant was not competent, unless the intervening time was so short that he could not have fitted himself for the duties of his employment.70 However, the master's knowledge of the intemperate habits of an engineer may be presumed from the fact that such knowledge was possessed by the foreman of the roundhouse

62 Webster v. Elmira &c. R. Co., 85 Hun (N. Y.) 167; s. c. 65 N. Y. St. Rep. 628; 32 N. Y. Supp. 590.

63

Copson v. New York &c. R. Co., 171 Mass. 233; s. c. 50 N. E. Rep. 613; Chicago City R. Co. v. McLaughlin, 40 Ill. App. 496; Smith v. St. Paul &c. R. Co., 32 Minn. 1; s. c. 50 Am. Rep. 550.

Raben v. Central &c. R. Co., 74 Iowa 732; s. c. 34 N. W. Rep. 621. See also, Young v. Chicago &c. R. Co., 100 Iowa 357; s. c. 69 N. W. Rep: 682; 6 Am. & Eng. R. Cas. (N. S.) 231.

Bryant v. Chicago &c. R. Co., 53 Fed. Rep. 997. See also, Creed v. Pennsylvania R. Co., 86 Pa. St. 139 (where it is held that the fact that the injured person was in a car in a mixed train not intended for the use of passengers did not raise a legal presumption of his negligence).

66 Atchison &c. R. Co. v. Headland, 18 Colo. 477; s. c. 20 L. R. A. 822; 33 Pac. Rep. 185.

67 Wagner v. Jayne Chemical Co., 147 Pa. St. 475; s. c. 1 Pa. Adv. Rep. 368; 11 Rail. & Corp. L. J. 212; 29 W. N. C. (Pa.) 490; 23 Atl. Rep. 772.

Mobile &c. R. Co. v. Godfrey, 155 Ill. 78; s. c. 39 N. E. Rep. 590; rev'g s. c. 52 Ill. App. 564.

V.

Roblin v. Kansas City &c. R. Co., 119 Mo. 476; s. c. 24 S. W. Rep. 1011. See, generally, Sullivan New York &c. R. Co., 62 Conn. 209; s. c. 25 Atl. Rep. 711; St. Louis Pressed-Brick Co. v. Kenyon, 57 Ill. App. 640; Stafford v. Chicago &c. R. Co., 114 Ill. 244; Ohio &c. R. Co. v. Dunn, 138 Ind. 18; s. c. 36 N. E. Rep. 702; 37 N. E. Rep. 546; Piehl v. Albany R. Co., 19 App. Div. (N. Y.) 471; s. c. 46 N. Y. Supp. 257.

7 Baxley v. Satilla Man. Co., 114 Ga. 720; s. c 40 S. E. Rep. 730.

whose duty it was to look after the engines and men, and make reports to his superiors."1

§ 7683. Presumption that Employé Received a Copy of Rules. -Courts will indulge the presumption that timetables containing the rules of a railroad company for the guidance of employés were received by an employé and that he was familiar with the rules, where it is shown that such rules were constantly issued to employés and certain officials of the defendant were specially charged with the duty of delivering such rules to employés in the line of employment of the injured person.

72

§ 7684. Employment of Inexperienced Motorman.-Where a street railway company employs a motorman having only a few days' experience in that capacity, and a person is killed on the track, any doubt as to whether the life of the deceased might not have been spared had the car been in the hands of a more competent motorman will be construed against the street railway company.73

§ 7685. Negligence in the Employment of Independent Contractor. -The fact that a building contractor was negligent in respect of the work does not create a presumption that the owners of the property were guilty of negligence in having employed him, so as to render them liable to a third person for an injury caused by his negligence.**

§ 7686. Explosions.-There is not entire harmony in the courts on the question of the presumption of negligence from an explosion. The preponderance of judicial opinion seems rather in the direction that the presumption does not arise,75 although well considered deci

71 Williams v. Missouri &c. R. Co., 109 Mo. 475; s. c. 18 S. W. Rep. 1098.

12 Frounfelker v. Delaware &c. R. Co., 74 App. Div. (N. Y.) 224; s. c. 77 N. Y. Supp. 470.

73 Crisman v. Shreveport Belt R. Co., 110 La. 640; s. c. 34 South. Rep. 718.

74 Hawke v. Brown, 28 App. Div. (N. Y.) 37; s. c. 50 N. Y. Supp. 1032.

75 John Morris Co. v. Southworth, 154 Ill. 118; s. c. 27 Chic. Leg. N. 105; 39 N. E. Rep. 1099; Walker v. Chicago &c. R. Co., 71 Iowa 658; Losee v. Buchanan, 51 N. Y. 476; Marshall v. Welwood, 38 N. J. L. 339; Huff v. Austin, 46 Ohio St.

386; Brunner v. Blaisdell, 170 Pa. St. 25; s. c. 37 W. N. C. (Pa.) 60; 32 Atl. Rep. 607; Early v. Arbogast, 180 Pa. St. 409; s. c. 40 W. N. C. (Pa.) 395; 33 Atl. Rep. 923; Young v. Bransford, 12 Lea (Tenn.) 232; Veith v. Hope Salt &c. Co., 51 W. Va. 96; s. c. 57 L. R. A. 410; 41 S. E. Rep. 187. Negligence on the part of a gas company cannot be inferred from an explosion of gas escaping from its pipes, but it must further appear that the company has either in construction, repair, or operation, omitted the reasonable care and caution which it should have observed: Schaum v. Equitable Gaslight Co., 15 App. Div. (N. Y.) 74; s. c. 44 N. Y. Supp. 284.

sions are not wanting which take the opposite position.76 The presumption of negligence in the case of the explosion of a boiler, if raised, may be overcome by proof that the owner applied every test recognized as necessary by experts to determine the strength of boilers. It need not be shown that every test known to experts was applied."

§ 7687. Failure of a Bailee to Redeliver Goods.--The general rule is that if a warehouseman or other bailee, liable only for loss occurring through his negligence, fails, upon demand made, to redeliver goods left in his care, or does not account for failure to make delivery, prima facie, negligence will be imputed to him; and the burden of exonerating himself by proving that the goods were lost without a want of ordinary care on his part is devolved upon him.78 "The rule," says Brickell, C. J., "is founded upon necessity, and upon the presumption that the party who, from his situation, must have peculiar, if not conclusive knowledge of the facts, if they exist, is best able to prove them. If the bailee, in whose possession, and under whose care and control the goods are, will not account for the failure or refusal to deliver them on demand of his principal, it is not a violent presumption that he has wrongfully converted or wrongfully retains them. But if there was injury to, or loss of them during his possession, it is for him to show the circumstances, acquitting himself of the want of care in keeping them which it was his duty to bestow. But where, as in the present case, there is full explanation of the failure to deliver on demand, and it is shown that the goods have been lost by a cause not involving him in liability, as by fire, or by theft, or by the violence of nature, it cannot be justly pronounced that he has been wanting in care-that he has been negligent, and his negligence was the proximate cause of the loss." In such cases, unless the facts attending the loss fail to ex

76 Warn v. Davis Oil Co., 61 Fed. Rep. 631; Grimsley v. Hankins, 46 Fed. Rep. 400; The Sydney, 27 Fed. Rep. 119; Judson v. Giant Powder Co., 107 Cal. 549; s. c. 29 L. R. A. 718; 40 Pac. Rep. 1020 (explosion of nitro-glycerine).

"Robinson v. New York &c. R. Co., 20 Blatchf. (U. S.) 338; Rose v. Stephens &c. Transp. Co., 20 Blatchf. (U. S.) 411.

"Seals v. Edmondson, 71 Ala. 509; Cass v. Boston &c. R. Co., 14 Allen (Mass.) 448; Clark v. Shrimski, 77 Mo. App. 166; s. c. 2 Mo. App. Repr. 96; Schmidt v. Blood, 9 Wend. (N. Y.) 268; Platt v. Hibbard, 7 Cow. (N. Y.) 497, note a; Claflin v. Meyer, 75 N. Y. 260.

70 Seals v. Edmondson, 71 Ala. 509, 512. Plaintiff in an action for injuries to goods while in a warehouse makes a prima facie case by proving the contract of storage, the receipt of the goods by the warehouseman, and the injury upon which his action is based; but when the defendant offers evidence accounting for the damage, which is susceptible of the inference that there was no lack of care on his part, the plaintiff must resume his proofs, and the burden of establishing by affirmative evidence that the defendant has been negligent: Mautner V. Terminal Warehouse Co., 25 Misc. (N. Y.) 729; s. c. 55 N. Y. Supp. 603.

clude the presumption of negligence arising from the failure to redeliver, the plaintiff must go further, and give evidence tending to show negligence on the part of the bailee in connection with the loss.80

$7688. Loss of Effects of Guest in Hotel.-Since an innkeeper is held liable as an insurer, the loss of goods belonging to a guest is presumptive evidence of negligence on the part of the innkeeper, from which he can only absolve himself by proof that the loss occurred without fault on his part, or by the fault of the guest.81

ARTICLE IV. BURDEN OF PROOF AS TO VARIOUS EVIDENTIARY FACTS.

SECTION

7695. Burden of proof generally.

7696. Contributory negligence.

SECTION

7712. Carrier must explain unreasonable delay.

7697. Meaning of term, "prima 7713. Authority of station agent to

§ 7695. Burden of Proof Generally.-It may be stated as a general principle, subject to the qualifications already noted and discussed, that the burden rests on the plaintiff to prove that the defendant was negligent and that such negligence was the proximate cause of the injury. In other words, negligence is not presumed but must be proved.1 The difficulty of proving the negligence charged does not affect the principle. The rule does not demand of the plaintiff that he establish his case beyond a reasonable doubt. The defendant, on his part, is not required to prove his defense by a preponderance of evidence; but evidence that will equally balance the plaintiff's evidence will be sufficient to defeat the action; and, where the only evidence upon which it is sought to charge him is mere hearsay, the defendant need not introduce any testimony. Nor will he be required to show any