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proving it is on the defendant.' In New York2 and other states, the decisions are contradictory and irreconcilable.3

Alabama. -Smoot v. Wetumpka, 24 Ala. 112; Seals v. Edmondson, 71 Ala. 509; Thompson v. Duncan, 76 Ala. 334; Montgomery etc. R. R. Co. v. Chambers, 79 Ala. 338.

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Arkansas. Texas etc. R. R. Co. v. Orr, 46 Ark. 182; Little Rock etc. R. R. Co. v. Atkins, 46 Ark. 423; Little Rock etc. R. R. Co. v. Everett, 48 Ark. 333; 3 Am. St. Rep. 230; Little Rock etc. R. R. Co. v. Eubanks, 48 Ark. 460; 3 Am. St. Rep. 245.

California. - Gay v. Winter, 34 Cal. 153, 164; Robinson v. R. R. Co., 48 Cal. 409, 426; McQuilken v. R. R. Co., 50 Cal. 7; McDougall v. R. R. Co., 63 Cal. 431.

Kansas. - Kansas etc. R. R. Co. v. Pointer, 14 Kan. 87; 9 Kan. 620; St. Louis etc. R. R. Co. v. Weaver, 35 Kan. 412.

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Minnesota. 22 Minn. 152.

- Hocum v. Weitherick,

Missouri.-Thompson v. R. R. Co., 51 Mo. 190; 11 Am. Rep. 443; Hicks v. R. R. Co., 65 Mo. 34; 64 Mo. 430; Schuerman v. R. R. Co., 3 Mo. App. 565; Buesching v. Gas Co., 73 Mo. 219; 39 Am. Rep. 503; Thorpe v. R. R. Co., 89 Mo. 650; 58 Am. Rep. 120; O'Connor v. R. R. Co., 94 Mo. 150; 4 Am. St. Rep. 364.

New Jersey. -New Jersey Express Co. v. Nichols, 32 N. J. L. 166; 33 N. J. L. 434; 97 Am. Dec. 722; Durant v. Palmer, 29 N. J. L. 544; Moore v. R. R. Co., 24 N. J. L. 268. Pennsylvania. - Beatty v. Gilmore, 16 Pa. St. 463; 55 Am. Dec. 514; Erie v. Schwingle, 22 Pa. St. 384; 60 Am. Dec. 87; Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; Bush v. Johnston, 23 Pa. St. 209; Hays v. Gallagher, 72 Pa. St. 136; Allen v. Willard, 57 Pa. St. 374; Mallory v. Griffey, 85 Pa. St. 275; Weiss v. R. R. Co., 79 Pa. St. 387; Pennsylvania etc. R. R. Co. v.

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Wisconsin. Prideaux v. Point, 43 Wis. 513, 524; 28 Am. Rep. 558; Hoyt v. Hudson, 41 Wis. 105; 22 Am. Rep. 714; Achtenhagen v. Watertown, 18 Wis. 331; 86 Am. Dec. 769; Potter v. R. R. Co., 20 Wis. 533; 91 Am. Dec. 444; 22 Wis. 615; 21 Wis. 372; Milwaukee etc. R. R. Co. v. Hunter, 11 Wis. 160; 78 Am. Dec. 699; overruling the contrary doctrine in Dressler v. Davis, 7 Wis. 572, and Chamberlain v. R. R. Co., 7 Wis. 427,

431.

2 The plaintiff must prove the absence of contributory negligence on his part: Warner v. R. R. Co., 44 N. Y. 465; reversing 45 Barb. 299; Besiegel v. R. R. Co., 14 Abb. Pr., N. S., 29; Curran v. Warren etc. Mfg. Co., 36 N. Y. 153; Suydam v. R. R. Co., 41 Barb. 375; De Benedetti v. Mauchin, 1 Hilt. 213; Burke v. R. R. Co., 34 How. Pr. 239; Holbrook v. R. R. Co., 12 N. Y. 236; 44 Am. Dec. 502; 16 Barb. 113; Spencer v. R. R. Co., 5 Barb. 337; Ryan v. R. R. Co., 1 Jones & S. 137; Gillespie v. Newburgh, 54 N. Y. 468, 471; Hart v. R. R. Co., 84 N. Y. 56; Jones v. R. R. Co., 10 Abb. N. C. 200.

But see Johnson v. R. R. Co., 20 N. Y. 65; 75 Am. Dec. 375; 6 Duer, 633; 5 Duer, 21; Robinson v. R. R. Co., 65 Barb. 146; Hackford v. R. R. Co., 6 Lans. 381; 43 How. Pr. 222; Squire v. R. R. Co., 4 Jones & S. 436; Button v. R. R. Co., 18 N. Y. 248; Lee v. Gas Light Co., 98 N. Y. 115.

3 Lester v. Pittsford, 7 Vt. 158; Barber v. Essex, 27 Vt. 62; Hyde v. Jamaica, 27 Vt. 443; Hill v. New Haven, 37 Vt. 501; 88 Am. Dec. 613; Walker v. Westfield; 39 Vt. 246; Bovee v. Danville, 53 Vt. 183; Moore v. Shreveport, 3 La. Ann. 645; Walker v. Herron, 22 Tex. 55, 61; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415, 417.

In short, it seems that where the courts have decided that the burden of proof is on the plaintiff to show due care on his part, they have also held (where the point has been made) that this proof need not be direct, but may be inferred from the circumstances attending the occurrence causing the injury; and in those states where the doctrine obtains that contributory negligence on the part of the plaintiff is a matter of defense, if his case raises an inference of negligence on his part, he must, in order to make out a prima facie case, show that he was guilty of no negligence.1

1 Thompson on Negligence, 1178.

CHAPTER LXIII.

EVIDENCE-PLEADING AND DAMAGES.

§ 1213. What is negligence-Evidence of negligence. Law and fact- When negligence for the court. When negligence for the jury.

Measure of damages-Loss of time-Incapacity to labor-Ex

penses.

§ 1214.

§ 1215.

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§ 1217.

§ 1218.

§ 1219.

Exemplary and punitory damages.

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Pain and suffering - Physical and mental.

§ 1213. What is Negligence-Evidence of Negligence. -Negligence is in law a relative term, implying the nonobservance of or omission to perform a duty which is prescribed by law, or which arises from the situation of the parties and the circumstances surrounding the transaction,' and the degree of care and vigilance which they usually impose. Where there is no duty to be cautious and vigilant, there can be no negligence in the legal sense of the term.3

2

In certain cases, from the fact alone of the injury, a presumption of negligence arises. The most frequent of these cases is that of an injury to a passenger. Here negligence on the part of the carrier is presumed; for he is bound by law and by his contract to carry the passenger safely. So where the injury arises from a neglect on the part of a person to perform a duty enjoined on him by statute. Here the same rule applies. Another instance of this presumption of negligence from the happening of an accident, and where the maxim Res ipsa

1 Kelly . R. R. Co., 65 Mich. 186;

8 Am. St. Rep. 876.

Hays v. R. R. Co., 70 Tex. 602; 8 Am. St. Rep. 624.

Morris v. Brown, 111 N. Y. 318;

7 Am. St. Rep. 751.

⚫ See post, Title Bailments.

loquitur applies, occurs where the happening of the accident is out of the ordinary run of things, and is not what would generally result in the absence of some want of care. When the plaintiff shows damage from an act of defendant, which act, with the exercise of proper care, would not ordinarily produce damage, he makes out a prima facie case of negligence, and throws the burden of proof on defendant. This principle is well stated by an English judge in a case in which a packing-case fell on the plaintiff. He said: "There is abundant evidence that the plaintiff (defendant) was responsible for this packingcase. It was his; it was close to his premises, and there was evidence that his servant was watching it. If, therefore, it was in an unsafe position, and did damage, he is responsible. Was there, then, evidence of this? I think there was; and that this is one of those cases in which, as has been said, Res ipsa loquitur. Packing-cases carefully placed in a proper position do not naturally tumble down of their own accord; and we have no right to assume that the fall of this packing-case was caused by the act of some one who was not the defendant's servant. But as in Byrne v. Boadle3 it was said that casks of flour do not roll out of windows naturally, and that if one of them falls in the course of being handed out, that is prima facie negligence in those who are handing it out; and as in Scott v. London etc. Dock Company1 it was said that if a bag of sugar, on being let down in a sling, falls, that is prima facie evidence of its having been improperly placed in the sling, so here the facts show a prima facie case. The substance of the matter is, that a packing-case, for which the defendant was responsible, fell on the plaintiff and injured him, and that raises a question for the jury as to the defendant's negligence." So in a case where a brick fell from the wall of a bridge and injured the

1 Moore v. Parker, 91 N. C. 275; Bevis v. R. R. Co., 26 Mo. App. 19. Briggs v. Oliver, 4 Hurl. & C. 403.

2

32 Hurl. & C. 722.
3 Hurl. & C. 596.

plaintiff,1 Cockburn, C. J., said: "The brick being loose affords, prima facie, a presumption that they had not used reasonable care and diligence. It is true that it is possible that, from changes in the temperature, a brick might get into the condition in which this brick-work appears to have been, from causes operating so speedily as to prevent the possibility of any diligence and care, applied to such a purpose, intervening in due time so as to prevent an accident. But inasmuch as our experience of these things is, that bricks do not fall out when brick-work is kept in a proper state of repair, I think, where an accident of this sort happens, the presumption is, that it is not the frost of a single night, or of many nights, that would cause such a change in the state of this brick-work as that a brick would fall out in this way; and it must be presumed that there was not that inspection and that care on the part of the defendants which it was their duty to apply. On the other hand, I admit most readily that a very little evidence would have sufficed to rebut the presumption which arises from the manifestly defective state of this brick-work."2

3

where a steamboat where a train runs

Thus in cases of the following character it has been held that from the fact of the accident a presumption of negligence arises, viz.: Where a bridge gives way when a train is passing over it; or a locomotive bursts its boiler; off a track; where the wheel of a stage-coach breaks;6 where a rail of a railroad-track breaks; where the shade of a lamp in a car falls; where a cinder falls from the

8

1 Kearney v. R. R. Co., L. R. 5 Q. B. 411; L. R. 6 Q. B. 759.

* And see Mullen v. St. John, 57 N. Y. 567; Vincett v. Cook, 4 Hun, 318. 3 Bedford etc. R. R. Co. v. Rainbolt, 99 Ind. 551.

The Sydney, 27 Fed. Rep. 119; Robinson v. R. R. Co., 20 Blatchf. 338; Rose v. Travis Co., 20 Blatchf. 411. Contra, as to a saw-mill: Young v. Bransford, 12 Lea, 232.

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