Christian, J.,
delivered the opinion of the court.
This is an action by M. H. Baker against the Chesapeake and Ohio Railway Company to recover damages for a personal injury. The plaintiff was a passenger on train No. 12, one of the defendant’s passenger trains, on its James River division on the morning of the 20th day of January, 1925, and was injured when the train upon which he was a passenger was derailed in the vicinity of Lee Station, Virginia. There was a verdict for the plaintiff for $20,000.00 damages, which the trial court refused to set aside, and upon which it entered judgment for the plaintiff. The plaintiff died after the verdict and judgment, and the action was revived in the name of his administratrix.
[553]*553On the morning of the 20th day of January, 1925, M. H. Baker boarded passenger train No. 12 of the Chesapeake and Ohio Railway Company at Columbia, Virginia; took his seat in the third or last coach in the train, and paid his fare to Richmond, Virginia. After this train had left Lee Station, Goochland county, running at the schedule rate of speed, on a straight piece of track, and had gotten something over a mile from said station, the rear coach of the train was derailed, turned over and rolled down an embankment. Baker was thrown into the top of the coach and his head was cut.
The derailment of this coach automatically stopped the train. The train crew went back to the wreck; got the passengers out of the coach; put them into the next coach, which was not derailed except its rear trucks. After these trucks had been re tracked, and the train crew had investigated the cause of the derailment, the train proceeded to Richmond, where Baker was taken to Memorial Hospital, examined and treated for ten days, then discharged as cured.
Inspection of the track showed that one of the rails broke into eleven pieces; the ends of this rail remaining attached to the adjoining rails. As far as inspection showed this broken rail was the cause of the derailment of the coach.
After Baker returned to his home, although the cut upon his head, which was the only injury that the physicians at the hospital could discover, had healed, he continued to suffer pain and nervousness as the result of this accident up to the time of the trial of this case.
Baker being a passenger of the common carrier, brought his action for damages for $30,000.00 against the railway company, alleging that his injury, pain and [554]*554suffering was caused by tbe breach of its well established duty imposed upon it by law as follows: It is the duty of the carrier of passengers to use the highest degree of care for their safety known to human prudence and foresight, and it is liable for the slightest negligence, against which human care and foresight may guard. This degree of care is required and applies not only to the manner in which its train is being run by its engineer, but-also to the running gear and equipment of the engine, tender and cars, and to the way in which its road bed is constructed, and its ties and rails are laid and maintained, and if the carrier fails to exercise such care in any of these particulars, and such failure causes a derailment which results in injury to a passenger, the carrier is liable therefor. Norfolk-Southern Railroad Company v. Tomlinson, 116 Va. 153, 81 S. E. 89.
The law governing the trial of cases of this nature is well established in this State. The failure of the carrier to perform the duties imposed by law upon it is the basis of liability to the passenger for injury, and .the burden of proof is oh the injured passenger to establish the negligence of the carrier. This burden does not shift, but continues through the case. While negligence of the carrier is never presumed from the mere fact of injury, yet an injury may occur under such circumstances as will warrant an inference or presumption of negligence. However, it is well settled that where a passenger is injured in a derailment of a passenger coach, that the carrier by reason of its duty as such, and the fact that the train and track are under the exclusive control and management of the carrier, and the accident is such that in the ordinary course of things it does not occur if those who have the control or management use proper care, the liability of the [555]*555carrier is to be determined upon the principle of negligence in accordance with the phrase or maxim, res ipsa loquitur; or, in other words, an injury under such circumstances is held to warrant the presumption of negligence, which puts the burden upon the defendant to disprove the existence of negligence by evidence that as a matter of fact all proper and reasonable care had been employed. Norfolk-Southern Railroad Company v. Tomlinson, supra; Hines v. Beard, 130 Va. 286, 107 S. E. 717; Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280.
There were several exceptions taken by the defendant and presented here to the rulings of the trial court upon the admission and rejection of evidence, and the argument of counsel before the jury, but careful study of the evidence satisfies us that the objection by the defendant to the plaintiffs instructions upon the ground that there is no evidence upon which they could be based, and the motion of the defendant to set aside the verdict of the jury and enter judgment for the defendant because there is no evidence to support the verdict, raise the same and sole question, for decision by us; in other words when the presumption and all the facts and circumstances are considered, is there any evidence of negligence upon which a jury could find a verdict for the plaintiff?
The plaintiff proved that he was a passenger of the defendant; the derailment of the coach; his injuries in consequence thereof, and the extent of his injuries. He also undertook to prove by a farmer and automobile mechanic that there were some rotten ties under the broken rail that contributed to the accident. The passenger made out a prima facie case, by the aid of the legal presumption, upon proof simply of the derailment and the consequent injury to him while a passenger.
[556]*556 Upon the plaintiff making out a prima facie case the burden was upon the defendant to show that it had exercised that high degree of care required of it by law. It proved that the track at the point of the accident was ballasted with stone; that the rails were the best standard rails, that they had under them sound white oak ties, and that the track was regularly and properly inspected according to the best railroad practice. The officials and employees in charge of the maintenance of way visited the scene of the derailment soon after it occurred and every one of them, including the train crew, testified that the sole cause of the derailment was the breaking of the rail, and those who were conversant with transverse fissures testified that the sole cause for the breaking of the rail was the transverse fissures therein.
Thereupon it became necessary for the defendant to prove (a) what a transverse fissure is, (b) how it occurs in a rail, and (c) whether science has developed any means to prevent it. A transverse fissure is a term applied to a type of fracture which has its origin in the interior of the head of a rail and which progressively enlarges from a definite nucleus.
Transverse fissure was first brought to the attention of the Interstate Commerce Commission in 19Í1.
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Christian, J.,
delivered the opinion of the court.
This is an action by M. H. Baker against the Chesapeake and Ohio Railway Company to recover damages for a personal injury. The plaintiff was a passenger on train No. 12, one of the defendant’s passenger trains, on its James River division on the morning of the 20th day of January, 1925, and was injured when the train upon which he was a passenger was derailed in the vicinity of Lee Station, Virginia. There was a verdict for the plaintiff for $20,000.00 damages, which the trial court refused to set aside, and upon which it entered judgment for the plaintiff. The plaintiff died after the verdict and judgment, and the action was revived in the name of his administratrix.
[553]*553On the morning of the 20th day of January, 1925, M. H. Baker boarded passenger train No. 12 of the Chesapeake and Ohio Railway Company at Columbia, Virginia; took his seat in the third or last coach in the train, and paid his fare to Richmond, Virginia. After this train had left Lee Station, Goochland county, running at the schedule rate of speed, on a straight piece of track, and had gotten something over a mile from said station, the rear coach of the train was derailed, turned over and rolled down an embankment. Baker was thrown into the top of the coach and his head was cut.
The derailment of this coach automatically stopped the train. The train crew went back to the wreck; got the passengers out of the coach; put them into the next coach, which was not derailed except its rear trucks. After these trucks had been re tracked, and the train crew had investigated the cause of the derailment, the train proceeded to Richmond, where Baker was taken to Memorial Hospital, examined and treated for ten days, then discharged as cured.
Inspection of the track showed that one of the rails broke into eleven pieces; the ends of this rail remaining attached to the adjoining rails. As far as inspection showed this broken rail was the cause of the derailment of the coach.
After Baker returned to his home, although the cut upon his head, which was the only injury that the physicians at the hospital could discover, had healed, he continued to suffer pain and nervousness as the result of this accident up to the time of the trial of this case.
Baker being a passenger of the common carrier, brought his action for damages for $30,000.00 against the railway company, alleging that his injury, pain and [554]*554suffering was caused by tbe breach of its well established duty imposed upon it by law as follows: It is the duty of the carrier of passengers to use the highest degree of care for their safety known to human prudence and foresight, and it is liable for the slightest negligence, against which human care and foresight may guard. This degree of care is required and applies not only to the manner in which its train is being run by its engineer, but-also to the running gear and equipment of the engine, tender and cars, and to the way in which its road bed is constructed, and its ties and rails are laid and maintained, and if the carrier fails to exercise such care in any of these particulars, and such failure causes a derailment which results in injury to a passenger, the carrier is liable therefor. Norfolk-Southern Railroad Company v. Tomlinson, 116 Va. 153, 81 S. E. 89.
The law governing the trial of cases of this nature is well established in this State. The failure of the carrier to perform the duties imposed by law upon it is the basis of liability to the passenger for injury, and .the burden of proof is oh the injured passenger to establish the negligence of the carrier. This burden does not shift, but continues through the case. While negligence of the carrier is never presumed from the mere fact of injury, yet an injury may occur under such circumstances as will warrant an inference or presumption of negligence. However, it is well settled that where a passenger is injured in a derailment of a passenger coach, that the carrier by reason of its duty as such, and the fact that the train and track are under the exclusive control and management of the carrier, and the accident is such that in the ordinary course of things it does not occur if those who have the control or management use proper care, the liability of the [555]*555carrier is to be determined upon the principle of negligence in accordance with the phrase or maxim, res ipsa loquitur; or, in other words, an injury under such circumstances is held to warrant the presumption of negligence, which puts the burden upon the defendant to disprove the existence of negligence by evidence that as a matter of fact all proper and reasonable care had been employed. Norfolk-Southern Railroad Company v. Tomlinson, supra; Hines v. Beard, 130 Va. 286, 107 S. E. 717; Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280.
There were several exceptions taken by the defendant and presented here to the rulings of the trial court upon the admission and rejection of evidence, and the argument of counsel before the jury, but careful study of the evidence satisfies us that the objection by the defendant to the plaintiffs instructions upon the ground that there is no evidence upon which they could be based, and the motion of the defendant to set aside the verdict of the jury and enter judgment for the defendant because there is no evidence to support the verdict, raise the same and sole question, for decision by us; in other words when the presumption and all the facts and circumstances are considered, is there any evidence of negligence upon which a jury could find a verdict for the plaintiff?
The plaintiff proved that he was a passenger of the defendant; the derailment of the coach; his injuries in consequence thereof, and the extent of his injuries. He also undertook to prove by a farmer and automobile mechanic that there were some rotten ties under the broken rail that contributed to the accident. The passenger made out a prima facie case, by the aid of the legal presumption, upon proof simply of the derailment and the consequent injury to him while a passenger.
[556]*556 Upon the plaintiff making out a prima facie case the burden was upon the defendant to show that it had exercised that high degree of care required of it by law. It proved that the track at the point of the accident was ballasted with stone; that the rails were the best standard rails, that they had under them sound white oak ties, and that the track was regularly and properly inspected according to the best railroad practice. The officials and employees in charge of the maintenance of way visited the scene of the derailment soon after it occurred and every one of them, including the train crew, testified that the sole cause of the derailment was the breaking of the rail, and those who were conversant with transverse fissures testified that the sole cause for the breaking of the rail was the transverse fissures therein.
Thereupon it became necessary for the defendant to prove (a) what a transverse fissure is, (b) how it occurs in a rail, and (c) whether science has developed any means to prevent it. A transverse fissure is a term applied to a type of fracture which has its origin in the interior of the head of a rail and which progressively enlarges from a definite nucleus.
Transverse fissure was first brought to the attention of the Interstate Commerce Commission in 19Í1. They have since appeared in large numbers and are chiefly prevalent on trunk lines.
Railroad engineers and those engaged in the safe operation of railroads have established by experiment and observation that the cause of transverse fissure is in the manufacturing process, rather than in the subsequent service to which the rails are put.
So far, notwithstanding the prevalence of this kind of fracture, there seems to be no promise, at present, of any remedy or means of discovering this latent [557]*557defect. They occur in different parts of the length of the rail. Several incipient fissures are commonly present in each rail which fails from this type of fracture. They have been found in rails only one month old and also those which were thirty years old.
The particular rail that caused the derailment had been down seven years, and had been inspected twice a day by the track walker, and at other times by other employees, with the result that no defect was discovered in the rail. This rail was purchased from the Bethlehem Steel Company that built it according to standard specifications of the American Railway Engineering Association. This rail was branded and every detail of manufacture shown, including its chemical composition, melt number and also the position of the ingot from which the rail was made. After the rail was manufactured and before it left the manufacturer it was subjected to chemical tests, and physical or mechanical tests. Thus it will be observed that every precaution suggested by experience and science had been taken to insure the safety of this particular rail.
Counsel for the plaintiff in their oral and written argument before us have characterized this rail as an inferior rail, and claimed that rotten ties under this rail had contributed to the development of the incipient transverse fissure. This position presupposes two thmgs, neither of which are proven. First that the rail was inferior and that there were rotten ties under it; second that the defendant knew of the incipient fissure in the rail and should not have put any ties under it but the very best.
The presumption of negligence arising from the derailment and injury of the passenger having been rebutted, and no other evidence of negligence pro[558]*558duced, there was no evidence upon which the jury could base a verdict, therefore the verdict of the jury should have been set aside by the trial court and judgment entered for the defendant. This court will enter here such judgment as the trial court should have done.
Reversed.