Mr. Chief Justice Magruder
delivered the opinion of the court:
By the giving of the instructions set out in the statement preceding this opinion, the court submitted the case to the jury upon the theory, that, if the appellee proved that he was in the exercise of ordinary care at the time of the accident, there was a presumption that appellant was guilty of negligence, and accordingly that the appellant had the burden of proving by a preponderance of evidence, that it was not negligent. The question presented for our consideration is, whether, in case of the happening of an accident to a passenger upon a street car, the two concurrent facts of the accident and the exercise of ordinary care by the injured party raise a presumption of negligence against the carrier, so as to shift the burden of proof upon it to show that it was not guilty of negligence.
, The weight of authority seems to be in favor of the position, that the mere happening of the accident, together with the exercise of ordinary care by the plaintiff, does not alone raise the presumption of negligence on the part of the defendant carrier. The rule is thus stated by Booth in his work on Street Railway Law, (sec. 361): “The mere fact, that a passenger has been injured en route without any evidence whatever as to the manner in which the accident occurred, does not raise a presumption of negligence against either of the parties, -but the burden of proof shifts where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it, or where it is caused by the mismanagement of a thing over which the defendant has immediate control, or for the management or construction of which it is responsible.” Where the injury occurs by reason of any defect in the machinery, or cars, or apparatus, or track of the carrier, or where there is anything improper or unskillful or negligent in the conduct of its servants, or unsafe in the appliances of transportation, the presumption then arises in favor of the negligence of the carrier, and the burden of rebutting this presumption is thrown upon it. But if the plaintiff’s own evidence shows, that the accident was due to a cause beyond the control of the carrier, as the presence of vis major, or the tortious act of a stranger, tending to produce the accident, no such prima facie case is made out as will throw the burden upon the carrier of showing that it was not guilty of negligence. The presumption in question comes from the nature of the accident, and the circumstances surrounding it, rather than from the mere fact of the accident itself. These circumstances must be such as tend to connect the carrier with the cause of the injury. If the circumstances, surrounding the accident, are such as to indicate, that it would not probably have occurred if the company had been in the use of suitable machinery, or safe ajjparatus, or if it had employed proper and competent servants to manage such machinery or apparatus, then the burden of proof will be shifted to the carrier. Such presumption of negligence has been held to exist against the carrier in cases of the overturning of a stage-coach, or of the derailment of a car, or of the sudden jerk of a train, or of a blow from part of a passing train, or of a collision between two trains belonging to the same carrier, or of the breaking down of a bridge upon the line of a railway. (Bradner on Evidence, pp. 422, 424; Ray on Negligence of Imposed Duties of Passenger Carriers, pp. 690-697; Hutchinson on Carriers, secs. 799-801; Patterson on Railway Accident Law, p. 438; Smith v. St Paul City Railway Co. 32 Minn. 1; Holbrook v. Utica and Schenectady Railroad Co. 12 N. Y. 236; LeBarron v. Bast Boston Ferry Co. 11 Allen, 312; Transportation Co. v. Downer, 11 Wall. 129; Stokes v. Saltonstall, 13 Pet. 181; Sterne v. Railway Co. 76 Mich. 591; Wharton on Law of Negligence, sec. 661). It is reasonable, that a presumption of negligence should arise against the carrier in cases where the cause of the accident is under its control, because it has in its possession the almost exclusive means of knowing what occasioned the injury, and of explaining how it occurred, while the injured party is generally ignorant of the facts. But where the cause of the accident is outside of and beyond any of the instrumentalities under the control of the carrier, its means of knowledge may not be and are not necessarily better than those of the passenger. In the present case, the car in which the appellee was riding was traveling along the public street of a city, which the owners of other vehicles had as much -right to use as the owners of the cable cars. Plaintiff’s own testimony showed, that he was injured by a wagon traveling along the public street, and passing the car in which tie was riding. The accident may have been due, so far as plaintiff’s evidence showed, to care1 less driving on the part of the driver of the wagon. Plaintiff’s proof was equally consistent with the absence as with the existence of negligence on the part of appellant. (Hutchinson on Carriers, sec. 799). At any rate, such evidence left it doubtful whether appellant was guilty of negligence or not, and the presumption that the accident was unavoidable, was as reasonable as that it was due to appellant’s negligence. (Sterne v. Railway Co. supra). Under such circumstances the nature of the accident was not such as to throw the burden of proof upon the appellant.
In Federal Street and Pleasant Valley Railway Co. v. Gibson, 96 Pa. St. 83, a passenger on the car of a street railway-company was struck and injured by a passing wagon loaded with hay, while sitting in the street car by an open window, with his, left arm resting on the window ledge, it not being shown whether it projected beyond the ledge or not; and it was held by the court, that the approximate cause of the injury, at least in part, was the act of a third party, to-wit: the driver of the wagon, over whom the railroad company had no control; and that, under the circumstances, the presumption of negligence on the part of the company did not arise, but that the duty rested on the passenger to prove the negligence of the company. There was there no privity of contract between the company and the driver of the wagon, as there is none in the case at bar. (Hawkins v. Front Street Cable Railway Co. 3 Wash. 592; Saunders v. Chicago and Northwestern Railway Co. 60 N. W. Rep. 148; Potts v. C. C. Ry. Co. 33 Fed. Rep. 610).
The same doctrine announced in the authorities herein before referred to is the doctrine of this court, as will be seen by reference to the following cases: North Chicago Street Railway Co. v. Cotton, 140 Ill. 486; New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 id. 40; Hart v. Washington Park Club, 157 id. 9. In North Chicago Street Railway Co. v. Cotton, supra, the facts showed that the plaintiff at the time he was injured, was a passenger on one of the defendant’s street cars run by a cable, and was standing on the rear platform of the car; and while in that position, as he was passing through the LaSalle street tunnel, he was run into by another of the defendant’s cars following on the same track, and thereby received the injuries complained of. In that case it will be noticed, that the collision was between two cars both of which belonged to the defendant company, and that the collision was not between one of the defendant’s cars and a vehicle which was not under the control of the defendant; in that case we said (p.
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Mr. Chief Justice Magruder
delivered the opinion of the court:
By the giving of the instructions set out in the statement preceding this opinion, the court submitted the case to the jury upon the theory, that, if the appellee proved that he was in the exercise of ordinary care at the time of the accident, there was a presumption that appellant was guilty of negligence, and accordingly that the appellant had the burden of proving by a preponderance of evidence, that it was not negligent. The question presented for our consideration is, whether, in case of the happening of an accident to a passenger upon a street car, the two concurrent facts of the accident and the exercise of ordinary care by the injured party raise a presumption of negligence against the carrier, so as to shift the burden of proof upon it to show that it was not guilty of negligence.
, The weight of authority seems to be in favor of the position, that the mere happening of the accident, together with the exercise of ordinary care by the plaintiff, does not alone raise the presumption of negligence on the part of the defendant carrier. The rule is thus stated by Booth in his work on Street Railway Law, (sec. 361): “The mere fact, that a passenger has been injured en route without any evidence whatever as to the manner in which the accident occurred, does not raise a presumption of negligence against either of the parties, -but the burden of proof shifts where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it, or where it is caused by the mismanagement of a thing over which the defendant has immediate control, or for the management or construction of which it is responsible.” Where the injury occurs by reason of any defect in the machinery, or cars, or apparatus, or track of the carrier, or where there is anything improper or unskillful or negligent in the conduct of its servants, or unsafe in the appliances of transportation, the presumption then arises in favor of the negligence of the carrier, and the burden of rebutting this presumption is thrown upon it. But if the plaintiff’s own evidence shows, that the accident was due to a cause beyond the control of the carrier, as the presence of vis major, or the tortious act of a stranger, tending to produce the accident, no such prima facie case is made out as will throw the burden upon the carrier of showing that it was not guilty of negligence. The presumption in question comes from the nature of the accident, and the circumstances surrounding it, rather than from the mere fact of the accident itself. These circumstances must be such as tend to connect the carrier with the cause of the injury. If the circumstances, surrounding the accident, are such as to indicate, that it would not probably have occurred if the company had been in the use of suitable machinery, or safe ajjparatus, or if it had employed proper and competent servants to manage such machinery or apparatus, then the burden of proof will be shifted to the carrier. Such presumption of negligence has been held to exist against the carrier in cases of the overturning of a stage-coach, or of the derailment of a car, or of the sudden jerk of a train, or of a blow from part of a passing train, or of a collision between two trains belonging to the same carrier, or of the breaking down of a bridge upon the line of a railway. (Bradner on Evidence, pp. 422, 424; Ray on Negligence of Imposed Duties of Passenger Carriers, pp. 690-697; Hutchinson on Carriers, secs. 799-801; Patterson on Railway Accident Law, p. 438; Smith v. St Paul City Railway Co. 32 Minn. 1; Holbrook v. Utica and Schenectady Railroad Co. 12 N. Y. 236; LeBarron v. Bast Boston Ferry Co. 11 Allen, 312; Transportation Co. v. Downer, 11 Wall. 129; Stokes v. Saltonstall, 13 Pet. 181; Sterne v. Railway Co. 76 Mich. 591; Wharton on Law of Negligence, sec. 661). It is reasonable, that a presumption of negligence should arise against the carrier in cases where the cause of the accident is under its control, because it has in its possession the almost exclusive means of knowing what occasioned the injury, and of explaining how it occurred, while the injured party is generally ignorant of the facts. But where the cause of the accident is outside of and beyond any of the instrumentalities under the control of the carrier, its means of knowledge may not be and are not necessarily better than those of the passenger. In the present case, the car in which the appellee was riding was traveling along the public street of a city, which the owners of other vehicles had as much -right to use as the owners of the cable cars. Plaintiff’s own testimony showed, that he was injured by a wagon traveling along the public street, and passing the car in which tie was riding. The accident may have been due, so far as plaintiff’s evidence showed, to care1 less driving on the part of the driver of the wagon. Plaintiff’s proof was equally consistent with the absence as with the existence of negligence on the part of appellant. (Hutchinson on Carriers, sec. 799). At any rate, such evidence left it doubtful whether appellant was guilty of negligence or not, and the presumption that the accident was unavoidable, was as reasonable as that it was due to appellant’s negligence. (Sterne v. Railway Co. supra). Under such circumstances the nature of the accident was not such as to throw the burden of proof upon the appellant.
In Federal Street and Pleasant Valley Railway Co. v. Gibson, 96 Pa. St. 83, a passenger on the car of a street railway-company was struck and injured by a passing wagon loaded with hay, while sitting in the street car by an open window, with his, left arm resting on the window ledge, it not being shown whether it projected beyond the ledge or not; and it was held by the court, that the approximate cause of the injury, at least in part, was the act of a third party, to-wit: the driver of the wagon, over whom the railroad company had no control; and that, under the circumstances, the presumption of negligence on the part of the company did not arise, but that the duty rested on the passenger to prove the negligence of the company. There was there no privity of contract between the company and the driver of the wagon, as there is none in the case at bar. (Hawkins v. Front Street Cable Railway Co. 3 Wash. 592; Saunders v. Chicago and Northwestern Railway Co. 60 N. W. Rep. 148; Potts v. C. C. Ry. Co. 33 Fed. Rep. 610).
The same doctrine announced in the authorities herein before referred to is the doctrine of this court, as will be seen by reference to the following cases: North Chicago Street Railway Co. v. Cotton, 140 Ill. 486; New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 id. 40; Hart v. Washington Park Club, 157 id. 9. In North Chicago Street Railway Co. v. Cotton, supra, the facts showed that the plaintiff at the time he was injured, was a passenger on one of the defendant’s street cars run by a cable, and was standing on the rear platform of the car; and while in that position, as he was passing through the LaSalle street tunnel, he was run into by another of the defendant’s cars following on the same track, and thereby received the injuries complained of. In that case it will be noticed, that the collision was between two cars both of which belonged to the defendant company, and that the collision was not between one of the defendant’s cars and a vehicle which was not under the control of the defendant; in that case we said (p. 494): “There seems to be a very general concurrence of authority, that where there was an absence of vis major, and it is shown that the injury happened from the abuse of agencies within the defendant’s power, it will be inferred from the mere fact of the injury that the defendant acted negligently.” In Railroad Co. v. Blumenthal, supra, it was held, that a prima facie case of negligence on the part of the railroad company arises, when a passenger on a freight train, in charge of cattle, is injured by being caught between two cars while he is descending the ladder to look after his cattle during stoppage of the train for water. But, there, the cars and their couplings or bumpers, and the ladder upon which the passenger was descending, belonged to and were under the control of the defendant company; and we said, that a prima facie case of negligence was made out in view of the manner and circumstances of the accident, it appearing that the injury to the passenger was caused by apparatus wholly under the control of the carrier, and furnished and applied by it; it was there held that the nature and circumstances of the accident were such as to throw upon the railroad company the burden of proving that the injury was not its fault. In Hart v. Washington Park Club, supra, we also held, that “the presumption of negligence arises, not exclusively from the fact that the accident happened, but that it happened under given conditions and in connection with certain circumstances.” Where the accident is one which would not in all probability happen if the person causing it was using due care, or the instrumentality causing the accident is solely under the management of the defendant, -then the occurrence of the accident, together with proof of the exercise of due care on the part of the plaintiff, is sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it.
For the reasons above stated, we think that the instructions given for the plaintiff, in stating the rule without the qualifications herein indicated, stated it too broadly. There was no instruction given for the appellant which cured the error involved in the instructions thus given for the appellee. The jury might well have believed, that the mere fact of the injury did not create a presumption of negligence against the defendant or its agents, and yet may have believed that the fact of the injury, coupled with the exercise of due care by appellee for his personal safety, did create such presumption.
In view of the error herein pointed out, the judgments of the Appellate and circuit courts are Reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded!.