U. S. 551, 555, 11 Sup. Ct. 653, 654, 35 L. Ed. 270, was an action by a wharfinger against a steamboat company for crushing his foot between the timbers of a wharf by the violent striking of a steamboat against the wharf while touching to receive freight from him. The court said:

"As such damage to a wharf is not ordinarily done by a steamboat under control of the officers and carefully managed by them, evidence that such damage was done in this case was prima facie evidence, and, if unexplained, sufficient evidence of the negligence on their part, and the jury might properly be so instructed."

In Kearney v. London & Ry. L. R. 6 Q. B. 759, a brick fell out of a pier of a railway bridge, without any assignable cause except the slight vibration of a passing train, and injured the plaintiff upon a highway passing under. Held evidence of negligence.

In Byrne v. Boadle, 2 Hurt. & Culb. 721, 726, the plaintiff was walking in a public street past the defendant's shops, when a barrel of flour fell upon him from a window above the shop. Held sufficient prima facie evidence of negligence to cast upon the defendant the burden of showing that the accident was not due to negligence. Pollock, C. B., said:

"The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the facts of an accident. Suppose in this case the barrel had rolled out of the warehouse, and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place, and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and, if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this: A man is passing in the front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant, who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the facts of its falling is prima facie evidence of negligence, and the plaintiff, who was injured by it, is not bound to show that it could not fall without negligence; but if there are any facts inconsistent with negligence it is for the defendant to prove them."

In Scott v. The London Docks Co., 3 Hurl. & Colt, 596, 600, plaintiff, while passing in front of a warehouse in the dock, in discharge of his duty as a customs collector, was injured by bags of sugar falling upon him which were being lowered from above. An effort was made by counsel to distinguish the case from Byrne v. Boadle, cited above, because the place where the accident occurred. was not, as there, a public highway, but a dock, the property of the company. Held evidence of negligence; Erle, C. J., saying:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of the explanation by the defendants, that the accident arose from want of care."

To same effect is the able opinion of Judge Morrow in The Joseph B. Thomas (D. C.) 81 Fed. 578.

In the case of The William Branfont, 52 Fed. 390, 394, 3 C. C. A. 155, the rule of evidence applied in Coasting Co. v. Tolson, 139 U. S. 552, 554, 11 Sup. Ct. 653, 35 L. Ed. 270, and cited heretofore, was applied to a case of where a stevedore was injured by the fall of a stanchion. The opinion was by Fuller, C. J., who, in affirming the judgment of the District Judge, said:

"It is plain that in his judgment a prima facie case was made out, not simply from the mere happening of the accident, but because the surrounding circumstances raised the presumption that it happened in consequence of a failure of duty on the part of libelee. Undoubtedly there are cases where the very nature of an accident has been held of itself to supply the proof of negligence, but the conclusion was not rested on the mere naked, isolated fact of injury. The presumption of negligence was drawn from the fact of the injury, coupled with the circumstances surrounding its infliction, and characterizing the nature of the occurrence as attributable to want of the requisite care, or as demanding an explanation which the defendant alone could furnish."

It has been said that in action by employés for negligence injuries evidence of an accident carries with it no presumption of negligence. Ill. Cent. R. Co. v. Coughlin, 132 Fed. 801, 65 C. C. A. 101; Patton v. T. P. R. Co., 179 U. S. 663, 21 Sup. Ct. 275, 45 L. Ed. 361; T. & P. R. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136. The reason is the peculiar contract of such an employé by which he assumes the risks incident to his employment, including the negligence of his fellow servants. He must therefore show that the injury of which he complains was the result of a risk he did not assume. It is also said that the explosion of a boiler does not afford prima facie evidence of negligence. For this the cases of T. & P. Ry. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, Huff v. Austin, 46 Ohio St. 386, 21 N. E. 864, 15 Am. St. Rep. 613, Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259, 19 Am. St. Rep. 475, and Marshall v. Welwood, 38 N. J. Law, 339, 20 Am. Dec. 394, are cited. The case of the T. & P. Ry. Co. v. Barrett was a suit by an employé, and for reasons stated above is not in point. Marshall v. Welwood follows Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623, in simply holding that there is no absolute responsibility for the consequences of the bursting of a boiler, and that there must be evidence of some negligence to sustain a recovery. Neither case involved the question as to whether evidence of the fact that a boiler had exploded supplied evidence of negligence in the absence of explanation. Cosulich v. Standard Oil Co. was the case of the explosion of a tank of oil in a coal oil refinery. Starting from the proposition that mere proof that fire had spread from the premises of one to those of another does not afford prima facie evidence of a negligent origin, the court held that evidence

that it had started from the explosion of a tank of oil in process of distillation in a manufacturing establishment did not point to negligence or carelessness. Huff v. Austin does squarely hold that the explosion of an ordinary steam boiler does not make a prima facie case of negligence. An opposite conclusion was reached by the Tennessee Supreme Court in Young v. Bransford, 12 Lea, 232, 241, where the question was considered in a careful opinion by Judge Cooper. In that case it was said:

"The fact that there was an explosion, which is not an ordinary incident of the use of a steam boiler, ought to have some weight, inasmuch as it may be out of the power of the aggrieved party in some instances to prove any more. The reasonable rule would seem to be that laid down by Judge Wallace as above, 'that from the mere fact of an explosion it is competent for the jury to infer as a proposition of fact that there was some negligence in the management of the boiler or some defect in its condition.'"

To same effect is Rose v. Transportation Co., 20 Blatchf. 411, 11 Fed. 438.

The presumption from evidence of a fire started by sparks from a railway engine is in many states determined by statute. But at the common law a prima facie case of negligence is not made out by mere evidence that it was started by sparks from a railway engine. The use of such engine being sanctioned by statute, there is no liability for a fire started from sparks unless the sparks were negligently suffered to escape. The ground of action being, therefore, for the negligent escape of sparks, a case is not made out by mere proof that it was started by sparks in view of the fact that some sparks will escape despite the use of appliances to arrest them. Garrett v. Southern Ry. Co., 101 Fed. 102, 41 C. C. A. 237, 49 L. R. A. 645; 13 Am. & Eng. Ency. Law, 507, 508, and cases cited in notes. But evidence of escape of larger sparks than usual, or an unusual number of sparks, has been held prima facie evidence of want of due care. Field v. N. Y. Cent. R., 32 N. Y. 339, 345; Mo. Pac. Ry. Co. v. Texas, etc., Ry. Co. (C. C.) 41 Fed. 917; Fitch v. Pac. Ry. Co., 45 Mo. 322; Henderson v. R. Co., 144 Pa. 461, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652. There are, however, many jurisdictions in which the mere fact of fire started by sparks is held, irrespective of statute, to be prima facie evidence of negligence. The cases may be seen in 13 Am. & Eng. Ency. Law, p. 498 et seq., and notes.

But where the character of the accident is such as to strongly point to a cause which is abnormal and negligent, it devolves upon the defendant to explain that that abnormal cause was not due to want of due care. Thus in Memphis Electric Lighting Co. v. Letson (C. C. A.) 135 Fed. 969, we held that a prima facie case of negligence was made out upon evidence that the intestate received a fatal current of electricity when turning on an ordinary electric lamp, the current being supplied for lighting purposes by the defendant.

It is useless to multiply examples of the proper application of the presumptions arising from the circumstances of a particular acci

dent. The court below tried the case carefully, and submitted the matters at issue under a sound charge, and the judgment must be affirmed.

(Circuit Court of Appeals, Second Circuit. June 23, 1905.)

No. 160.

1. ESCROW AGREEMENT-CONSTRUCTION.

Where the holder of a Havana horse car franchise executed an assignment of his right to the concession, and agreed to follow the assignment by proper transfer when the Havana authorities should grant a right to use electricity as a motive power for the road, which assignment defendant acknowledged he had received, and was to hold in escrow in accordance with the terms of the agreement, which trust he thereby accepted, the receipt constituted a mere escrow contract, by which defendant agreed to hold the assignment until an electric concession was granted, and did not create a fiduciary relation between him and complainant. 2. SAME.

The assignment contract having been canceled three years after it was made, because of the inability of complainant and the assignor to then obtain an electric concession, the fact that defendant had acted as the holder of the escrow agreement for complainant, and had knowledge thereof, etc., did not preclude him, more than a year after the contract was canceled, from himself obtaining an assignment of the original concession. Appeal from the Circuit Court of the United States for the Southern District of New York.

On appeal from a decree of the United States Circuit Court for the Southern District of New York, entered July 28, 1904, dismissing the bill with costs.

On the 19th of June, 1893, the city of Havana granted to Mariano De La Torre a concession to build and operate a horse railway on certain designated streets in the said city, which concession was subsequently transferred by De La Torre to Francisco Pla. On October 22, 1895, Pla entered into a contract with the complainant pursuant to which he agreed to apply to the city of Havana, under article third of the concession, for the right to substitute electricity for horses as the motive power of the said railway and within 30 days after the grant of electricity the complainant agreed to pay to Pla $15,000 in Spanish gold, and other sums after the completion of the road. The contract then proceeds as follows:

"Upon the signing hereof said Pla will execute an assignment of said Concession to the said Havana City Railway Company, which he will place in the hands of Mr. J. M. Ceballos of New York to so remain until the Company pays the Fifteen thousand dollars as agreed, or, when said J. M. Ceballos is satisfied by the Company's order upon the bankers engaging to underwrite the Company's bonds, he will then deliver such assignment to the company and will receive from said Pla the deed of the Electric Concession which will then be delivered to the company, so that it can issue its bonds and record its mortgage."

On the same day Pla executed the following instrument:

"80 Wall St., New York, Oct. 22, 1895. "For value received I hereby sell, assign and transfer unto the Havana City Railway Company of West Virginia, U. S. A. all my right, title and interest into the Concession for a horse car line heretofore granted by the City of Havana to Manuel De La Torre, upon the plans filed by Col. J. Ruiz, and agree to follow this assignment by proper transfer by Deed to said Co. when said Havana authorities shall grant Electricity as a motive power for said road. Fr. Pla 'y Picabia."

This assignment was delivered to the defendant who signed the following receipt:

"I have Rec'd from Mr. F. Pla of Havana, Cuba, an assignment to you of the Horse Car Concession granted by City of Havana to Manuel De La Torre which I am to hold in escrow in accordance with the terms of the agreement made yesterday between your Co. and Mr. Pla which trust I hereby accept. J. M. Ceballos."

The complainant insists that by virtue of this receipt the defendant became trustee for the complainant in the matter of the acquisition of the right to use electricity as the motive power of the proposed railway and that he must account to complainant for all moneys received by him in the disposition and sale of the said concession and rights thereunder. For opinion below, see 131 Fed. 381.

C. Godfrey Patterson, for appellant.
Jno. J. Adams, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge (after stating the facts as above). An examination of the receipt, which is the foundation of this action, discloses the fact that it is simply an escrow contract by which the defendant held the assignment in accordance with the agreement between the complainant and Pla. In other words, after Pla had secured the right to use electricty and the complainant had paid him. $15,000 the defendant was to deliver the assignment to the complainant and not until then. This escrow contract was drawn up by the complainant's president and uses the words "which trust I hereby accept" but we think the complainant places an erroneous interpretation upon these words when it insists that in all subsequent matters relating to the Havana concession the defendant acted as the complainant's trustee. The language of the instrument itself leaves no doubt as to the nature of the trust-namely, to hold the assignment in escrow as agreed.

A clear and comprehensive treatment of the subject of escrows will be found in 16 Cyc. 561. At page 575 the writer says:

"Until the escrow contract has been made, the depositary has no rights or authority enforceable at law. When this has been made and the instrument deposited, the depositary is not the agent of the grantor, obligor, or promisor alone, but he is the agent of both parties. When the condition upon the happening of which the instrument is to take effect is performed, the depositary becomes the mere agent or trustee of the grantee and the depositary's possession is the possession of the grantee. The depositary must have the power to judge whether the condition has been performed, in order to act, unless he is relieved of this duty by the stipulations of the parties. Where he has such power and exercises it, the nonperformance of the condition cannot be asserted against bona fide purchasers. A depositary who violates the terms of the escrow contract is liable in damages for the loss suffered thereby."

The condition upon which the defendant was to deliver the paper held by him in escrow never arose, and therefore he did not and