the plaintiff to establish each element of her case, including that of the negligence of the defendants. But, taken in connection with the portion of the charge quoted, that the accident raised a presumption of negligence, and that there was no testimony to overcome the presumption, the jury was substantially told the plaintiff had successfully borne that burden. Each defendant took an exception to that part of the charge which instructed the jury that the accident raised a presumption of negligence against it, calling for an explanation, though neither seems to have excepted to the charge that no explanation had been given.

The appellant the Third Avenue Railroad Company insists that the doctrine, "Res ipsa loquitur," does not apply to it, and that the instruction that the occurrence of the collision raised a presumption of negligence upon its part calling for an explanation was erroneous. With this claim we agree. Falke v. Railroad Co., 38 App. Div. 49, 55 N. Y. Supp. 984. That defendant, not being the carrier, was bound only to the exercise of ordinary care in the management of its cars. If one company had been in the control and management of both the cars, a presumption of negligence on its part would properly arise. But here there were two actors, and the collision might have been due entirely to the fault of one party, and not at all to the fault of the other.

The decisions in Volkmar v. Railway Co., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. Rep. 630, and Hogan v. Same, 149 N. Y. 23, 43 N. E. 403, do not apply to a case like this. In those cases pieces of iron fell from the elevated railway structure and injured the plaintiffs, traveling on the highway beneath. It was held that the occurrence of the accident raised a presumption of negligence.11 But articles should not be suffered to fall on the highway, and ordinarily do not fall without carelessness on the part of the persons letting them fall. In those cases the parties injured in no way contributed to the accident, except by their presence. Here the railroad company had the right to operate its cars along the street, and it cannot be said that in the ordinary course of things a car does not collide with vehicles or persons except when there has been carelessness in the management of the car. Unfortunately, the reports are full of cases of such collisions, and of serious injuries resulting therefrom, where it has been found, either as matter of fact by juries, or as matter of law by the courts,

11 In Scott v. London Dock Co., 3 Hurl. & C. 596 (1865), an action for negligently dropping upon the plaintiff, a customs officer, bags of sugar which were being lowered from a warehouse by a crane, Earle, C. J., said: "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 explanation by the defendants, that the accident arose from want of care."

that the railroad company was not at fault. The exception of this appellant to the court's charge is well taken.

As to the appellant the Eighth Avenue Railroad Company a different rule obtains. While it was not a guarantor of the safety or security of its passengers, it was bound to exercise a very high degree of care to accomplish that result. It is easy to imagine many injuries that might occur to passengers, from which no presumption of negligence would arise. But the danger of collision with other vehicles moving on the street is always present, and the employé managing and controlling the car must be on the alert to avoid that danger. The danger is greater at the intersection of other railroads, and care must there be used proportionate to the danger.

As was said by the court below, the Eighth Avenue Railroad Company could not insist upon or assert its right of way at the crossing as against the car of the other company, if there were reasonable grounds to apprehend that thereby it would endanger the safety of its passengers. The management and control of the transportation of the passenger is wholly confided to the employés operating the car; and the former cannot be expected to be on the watch either as to its management or that of other vehicles, or, if a collision takes place, be able to account for its occurrence. Therefore, when such a collision occurs, there arises a presumption of negligence on the part of the carrier, which calls upon it for explanation. The exception of the Eighth Avenue Railroad Company to the instruction of the court on this subject is not well taken.

But, though the occurrence of the accident called for an explanation by this defendant, we think the trial court erred in charging, as a matter of law, that no explanation had been furnished. We have already referred to the fact that the cable car struck the rear end of the horse car. How far this circumstance tended to show that the horse car had properly and carefully proceeded over the crossing and that the collision was due, not to its fault, but to that of the other defendant, was a question of fact for the jury, not of law for the court.

* * *

While an exception was not taken to the charge of the court, the question was raised when the court refused to charge the request, "If either the conclusion of the negligence of the Eighth Avenue Railroad Company, or the absence of negligence on its part, may, with equal fairness, be drawn, then the Eighth Avenue Railroad Company cannot be recovered against," to which the defendant excepted. This refusal was consistent with the court's previous ruling that, as matter of law, the presumption of negligence had not been overcome. In our view, however, it was erroneous; for, even though the accident created a presumption of negligence on the part of the defendant the Eighth Avenue Railroad Company, still, if there was any evidence. to rebut the presumption, the burden of proof rested on the plaintiff (Whitlatch v. Casualty Co., 149 N. Y. 45, 43 N. E. 405); and if, on

the whole case, the conclusion of negligence or absence of negligence could be drawn with equal fairness, that burden was not discharged. Cordell v. Railroad Co., 75 N. Y. 330. * * *

The judgment should be reversed, and a new trial granted; costs to abide the event.12

12 See cases on this subject collected and commented upon in 68 L. R. A. 799, 809, note.

CHAPTER III

CASES NOT WITHIN THE RULE OF EXCEPTIONAL LIABILITY IN THE CARRIAGE OF GOODS

SECTION 1.-ACT OF GOD

AMIES v. STEVENS.

(Court of King's Bench, 1718. 1 Str. 127.)

The plaintiff puts goods on board the defendant's hoy, who was a common carrier. Coming through bridge, by a sudden gust of wind the hoy sunk, and the goods were spoiled. The plaintiff insisted that the defendant should be liable, it being his carelessness in going through at such a time, and offered some evidence that, if the hoy had been in good order, it would not have sunk with the stroke it received, and from thence inferred the defendant answerable for all accidents, which would not have happened to the goods in case they had been put into a better hoy. But the Chief Justice held the defendant not answerable, the damage being occasioned by the act of God. For though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous; yet this being only a sudden gust of wind, had entirely differed the case: and no carrier is obliged to have a new carriage for every journey: It is sufficient if he provides one which without any extraordinary accident (such as this was) will probably perform the journey.1

1 The following cases illustrate causes of loss which may fall within the class called acts of God:

EARTHQUAKE.-Slater v. So. Car. R. R. Co., 29 S. C. 96, 6 S. E. 936 (1888), washout caused by giving way of dam in Charleston earthquake of 1886.

FLOOD.-Railroad Company v. Reeves, 10 Wall. 176, 19 L. Ed. 909 (1869), unprecedented freshet; Gillespie v. St. Louis, etc., R. Co., 6 Mo. App. 554 (1879), washout caused by heavy rain: Pearce v. The Thomas Newton (D. C.) 41 Fed. 106 (1889), high tide, though exceeded twice in previous 40 years, caused by storm; Long v. Pa. R. Co., 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732 (1892), Johnstown flood, caused by heavy rain bursting dam; International, etc., R. Co. v. Bergman (Tex. Civ. App.) 64 S. W. 999 (1901), Galveston flood.

VIOLENCE OF WIND OR WAVES.-Blythe v. Denver & R. G. R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403 (1890), railroad car overturned by wind; Hart v. Allen, 2 Watts (Pa.) 114 (1833), boat upset by squall; The Calvin S. Edwards, 50 Fed. 477, 1 C. C. A. 533 (1892), severe gale at sea, starting leaks in an old schooner such as to justify her crew in abandoning her.

But damage caused to cargo by the rolling of the vessel in a storm not of exceptional severity is not due to act of God, though inevitable. The Reeside,

FRIEND v. WOODS.

*

(Supreme Court of Appeals of Virginia, 1849. 6 Grat. 189, 52 Am. Dec. 119.) DANIEL, J.2 * It is contended by the plaintiffs in error that the evidence offered by them in the court below tended to show that the loss sustained by the plaintiff was occasioned by such an extraordinary peril as negatived all legal inference of negligence on the part of the carrier, and made the loss referable to the act of God, and that the instruction given by the court at the instance of the plaintiff was erroneous and prejudicial to them.

It appears from the bill of exceptions that the plaintiff, having proved that he delivered at the Kanawha Salines, in the county of Kanawha, on board of a steamboat in the charge of the defendants, who were the owners thereof, and common carriers, a quantity of salt, to be carried on the said boat to Nashville, in the state of Tennessee, for the transportation of which the defendants were to receive. a stipulated freight per barrel, and that the said boat freighted with said salt proceeded on her voyage as far as to the confluence of the Elk river with the Kanawha, when she stranded, sprung a leak, and filled with water, whereby a portion of the salt was wholly lost, and the balance much damaged and impaired in value; and the defendants having then introduced evidence tending to prove that the water in the river was in good navigable condition, that the boat was conducted through the ordinary channel for steamboat navigation, that some eight or ten days before the boat proceeded on her voyage there was a rise of Elk river, a tributary of the Kanawha, and the ice gorged at its mouth, and a bar of sand and gravel formed in the channel along which the boat had to pass, and that the officers and crew of the boat were ignorant of the formation of the bar when the boat stranded upon it, and that the officers and crew used their efforts to save the salt after the boat had so stranded, the plaintiff moved the

2 Sumn. 567, Fed. Cas. No. 11,675 (1837). Here Story, J., said: "It seems to me that the weather was not worse than what must ordinarily be expected to be encountered in such a voyage, and the rolling of the vessel in a cross sea is an ordinary incident to every voyage upon the sea." See, also, The Dutchess of Ulster, Fed. Cas. No. 14,087a (1851). And where a tug came to a stop because her intended pier was temporarily occupied, and her tow was carried against her by waves and tide not extraordinary in character, it was held that the accident, though without negligence, was not to be attributed to the act of God. Oakley v. Portsmouth, etc., Co., 11 Ex. 618 (1856). So, also, where the current of a river carries a boat ashore. Craig v. Childress, Peck (Tenn.) 270, 19 Am. Dec. 751 (1823). But cf. Nugent v. Smith, L. R. 1 C. P. D. 423, 435-438 (1876). And when a vessel was tacking near rocks a sudden failure of wind which prevented her coming about, so that she went on the rocks, was held to excuse the carrier. Colt v. McMechen, 6 Johns. (N. Y.) 160, 5 Am. Dec. 200 (1810).

BLOCKADE BY SNOW of cattle train causing cattle to freeze: Black v. C., B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428 (1890); Jones v. Minneapolis, etc., R. Co., 91 Minn. 229, 97 N. W. 893, 103 Am. St. Rep. 507 (1904).

2 The statement of facts and parts of the opinion are omitted.