Daneorth, J.
The plaintiff seeks to recover damages for an injury, suffered by him while he was in the employment of the defendant as a servant, and in the execution of his duties as such. The case is reported upon the plaintiff’s testimony alone with the proviso that if the action is maintainable it is to stand for trial; otherwise to be nonsuit.
It appears that a freight train stood upon the track of the defendants’ railroad, at the station in Bangor, ready to be started for Waterville. To this train was attached a freight car from the rear end of which the bumpers and draw-bar had been broken. Such was the grade out of the station toward Waterville, that it was necessary to render some extra assistance to start this train upon its way. In order to do this another train, consisting of an engine and about eight cars, upon which the plaintiff was a brake-man, was backed toward the Waterville train with a view of coupling to it and pushing it over the grade. On approaching the Waterville, the conductor of the assisting train ordered the plaintiff who was on the top and about midway of it to “run ahead and make the hitch.” The plaintiff started in obedience to the order, but before its execution was accomplished the accident happened and he became unconscious. .As there is no [579]*579witness who saw him at the time, we have no direct testimony as to the manner in which the injury occurred.
These facts present the first question raised in this case. That is, whether the proof is sufficient to authorize the jury to come to the conclusion that the injury was caused in whole or in part by the defective car. If not so caused there is no ground disclosed upon which the action can be maintained against the company. If it was so caused, as it is the duty of the company to provide suitable cars and exercise due care in keeping them in repair, the action can be sustained if made out in other respects. The same result would follow if such was the effective, proximate cause even though the negligence of a fellow servant might have contributed to the accident. It is true the company in this case would not be responsible for the negligence of a fellow servant; neither would the plaintiff. Nor can a party be relieved from the consequences of his own want of care by the intervention of the wrong of a third party when that wrong was contributory only. Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 Mass. 575.
Could then, the jury have, fairly, come to the conclusion that the defective car was the efficient cause of the injury? The plaintiff testifies that Avhen the order was given “I started to run across the cars to make the hitch.” Subsequently he says, “I started to make the hitch.” BetAveen these statements, there is some testimony indicating some things he had done toward making the coupling, or which may be understood as stating the manner of doing it. There is also testimony of the surgeons showing the nature of the injuries and by inference how they must have been caused. The plaintiff’s counsel seems to understand and assume that the plaintiff had made some progress in the execution of the order at least so far as to have begun to descend the ladder necessary to reach the place of coupling, and thus being between the defective car and the one to be attached, was there caught and injured. The defendant vieAvs it differently. Hearing the testimony would probably give a better understanding of it than a report. Taking all the testimony together with the fact which should not be overlooked, that the case discloses nothing to show [580]*580that the accident could have happened in any other way, we think it should be submitted to the jury.
The. second question raised is whether the plaintiff is shown to have been in the exercise of due care at the time of the accident. The degree of care required is not in dispute, nor is it denied that it is a question for the jury. But it is denied that the plaintiff has affirmatively discharged the burden resting upon him of showing that he was not guilty of negligence which contributed to the accident. This at best is a negative kind of proof. It is not necessary, nor is it ordinarily expected, that any positive act of care shall be proved. If there is any fault that is usually susceptible of proof. But the absence of fault, with evidence of circumstances which naturally exclude it, is sufficient. Maguire v. Fitchburg R. Co., 146 Mass. 379.
It would seem to be a fair inference from the testimony that the plaintiff, though some years under his majority, had sufficient intelligence and experience to enable him to understand and appreciate the dangers attendant upon the service to be performed. He well knew the necessity of the draw-bar and bumpers and could not fail to know the result likely to follow an attempt to shackle the cars in their absence. If the plaintiff was upon the ground facing the defective car, he could not fail to see the defect and the danger resulting from it. But the case shows affirmatively that he was on the top of the car and so far as appears properly so. To perform his duty he must descend, and the only way provided, was a ladder at the end of the car and so near to it that he could go down only by facing the car upon which he was, and, of course, with his back to the defective ear. True, in work which is at best dangerous, vigilance is an element of the care required in the servant. But it is that degree of vigilance which is consistent with a prompt and efficient discharge of his duty and not that which follows, when such a duty is to be performed, from a delay sufficient to allow a careful examination and search for defects, which it is the duty of the master to guard against.
In this case the plaintiff was in the performance of a duty, performing it so far as appears in the ordinary way, and if at the .time of the accident, the jury find as we have seen the evidence [581]*581tends to show, that he was descending the ladder or had just reached the ground, we think in the absence of other testimony the jury would be authorized to find due care on the part of the plaintiff.
The third question raised, and which is most discussed at the bar, relates to the sufficiency of the proof to sustain the charge of negligence against the defendant company. That the burden of proof to sustain this charge is upon the plaintiff is not denied. This burden does not change in any stage of the ease. This can only bo done, by admitting a previous fact, or series of facts sufficient to maintain or defeat an action and setting up another fact or series of facts, not in rebuttal of the first but to avoid their effect. There may be a prima facie ease made by the testimony, the effect of which may be modified or destroyed by rebutting testimony. In such case, the issue is to be decided by the preponderance of testimony, the burden remaining where it first rested. In Stevens v. E. & N. A. Ry., 66 Maine, 74, it was decided that the burden of proof was upon the plaintiff to show negligence on the part of the defendant company; but it was further held that the plaintiff made out a prima facie case by showing simply that the cars run off the track by which the injury was caused.
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Daneorth, J.
The plaintiff seeks to recover damages for an injury, suffered by him while he was in the employment of the defendant as a servant, and in the execution of his duties as such. The case is reported upon the plaintiff’s testimony alone with the proviso that if the action is maintainable it is to stand for trial; otherwise to be nonsuit.
It appears that a freight train stood upon the track of the defendants’ railroad, at the station in Bangor, ready to be started for Waterville. To this train was attached a freight car from the rear end of which the bumpers and draw-bar had been broken. Such was the grade out of the station toward Waterville, that it was necessary to render some extra assistance to start this train upon its way. In order to do this another train, consisting of an engine and about eight cars, upon which the plaintiff was a brake-man, was backed toward the Waterville train with a view of coupling to it and pushing it over the grade. On approaching the Waterville, the conductor of the assisting train ordered the plaintiff who was on the top and about midway of it to “run ahead and make the hitch.” The plaintiff started in obedience to the order, but before its execution was accomplished the accident happened and he became unconscious. .As there is no [579]*579witness who saw him at the time, we have no direct testimony as to the manner in which the injury occurred.
These facts present the first question raised in this case. That is, whether the proof is sufficient to authorize the jury to come to the conclusion that the injury was caused in whole or in part by the defective car. If not so caused there is no ground disclosed upon which the action can be maintained against the company. If it was so caused, as it is the duty of the company to provide suitable cars and exercise due care in keeping them in repair, the action can be sustained if made out in other respects. The same result would follow if such was the effective, proximate cause even though the negligence of a fellow servant might have contributed to the accident. It is true the company in this case would not be responsible for the negligence of a fellow servant; neither would the plaintiff. Nor can a party be relieved from the consequences of his own want of care by the intervention of the wrong of a third party when that wrong was contributory only. Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 Mass. 575.
Could then, the jury have, fairly, come to the conclusion that the defective car was the efficient cause of the injury? The plaintiff testifies that Avhen the order was given “I started to run across the cars to make the hitch.” Subsequently he says, “I started to make the hitch.” BetAveen these statements, there is some testimony indicating some things he had done toward making the coupling, or which may be understood as stating the manner of doing it. There is also testimony of the surgeons showing the nature of the injuries and by inference how they must have been caused. The plaintiff’s counsel seems to understand and assume that the plaintiff had made some progress in the execution of the order at least so far as to have begun to descend the ladder necessary to reach the place of coupling, and thus being between the defective car and the one to be attached, was there caught and injured. The defendant vieAvs it differently. Hearing the testimony would probably give a better understanding of it than a report. Taking all the testimony together with the fact which should not be overlooked, that the case discloses nothing to show [580]*580that the accident could have happened in any other way, we think it should be submitted to the jury.
The. second question raised is whether the plaintiff is shown to have been in the exercise of due care at the time of the accident. The degree of care required is not in dispute, nor is it denied that it is a question for the jury. But it is denied that the plaintiff has affirmatively discharged the burden resting upon him of showing that he was not guilty of negligence which contributed to the accident. This at best is a negative kind of proof. It is not necessary, nor is it ordinarily expected, that any positive act of care shall be proved. If there is any fault that is usually susceptible of proof. But the absence of fault, with evidence of circumstances which naturally exclude it, is sufficient. Maguire v. Fitchburg R. Co., 146 Mass. 379.
It would seem to be a fair inference from the testimony that the plaintiff, though some years under his majority, had sufficient intelligence and experience to enable him to understand and appreciate the dangers attendant upon the service to be performed. He well knew the necessity of the draw-bar and bumpers and could not fail to know the result likely to follow an attempt to shackle the cars in their absence. If the plaintiff was upon the ground facing the defective car, he could not fail to see the defect and the danger resulting from it. But the case shows affirmatively that he was on the top of the car and so far as appears properly so. To perform his duty he must descend, and the only way provided, was a ladder at the end of the car and so near to it that he could go down only by facing the car upon which he was, and, of course, with his back to the defective ear. True, in work which is at best dangerous, vigilance is an element of the care required in the servant. But it is that degree of vigilance which is consistent with a prompt and efficient discharge of his duty and not that which follows, when such a duty is to be performed, from a delay sufficient to allow a careful examination and search for defects, which it is the duty of the master to guard against.
In this case the plaintiff was in the performance of a duty, performing it so far as appears in the ordinary way, and if at the .time of the accident, the jury find as we have seen the evidence [581]*581tends to show, that he was descending the ladder or had just reached the ground, we think in the absence of other testimony the jury would be authorized to find due care on the part of the plaintiff.
The third question raised, and which is most discussed at the bar, relates to the sufficiency of the proof to sustain the charge of negligence against the defendant company. That the burden of proof to sustain this charge is upon the plaintiff is not denied. This burden does not change in any stage of the ease. This can only bo done, by admitting a previous fact, or series of facts sufficient to maintain or defeat an action and setting up another fact or series of facts, not in rebuttal of the first but to avoid their effect. There may be a prima facie ease made by the testimony, the effect of which may be modified or destroyed by rebutting testimony. In such case, the issue is to be decided by the preponderance of testimony, the burden remaining where it first rested. In Stevens v. E. & N. A. Ry., 66 Maine, 74, it was decided that the burden of proof was upon the plaintiff to show negligence on the part of the defendant company; but it was further held that the plaintiff made out a prima facie case by showing simply that the cars run off the track by which the injury was caused. This was upon the ground that in running railroads the simple fact that the cars run off is presumptive evidence that there is something wrong in the track or in the management of the train, and as in that case the plaintiff was a passenger, for whose safety the company was responsible, and for the care of its employes, as well as for the good condition of its track, the evidence shows a presumptive wrong on the part of the company, which it was bound to explain if it were susceptible of explanation. This principle seems to be in accordance with sound law as settled by the authorities. It is made more evident by the- fact that the road is in the possession, and its running in the control of, the company, and hence the explanation, if any, must bo in its control also. This too is perfectly consistent with the principle enunciated in Nason v. West, 78 Maine, 256, that the mere fact of an accident raises no presumption of wrong on the part of the defendant. This is true in the case referred to and may be true [582]*582in very many cases. The accident, in order to raise that presumption, must be one which, from its nature, or from such attending circumstances, would not be expected unless by an omission wrongful on the part of the defendant, and perhaps when the explanation is in the control of the defendant.
The case at bar is in favor of an employe. But there appears no reason why the .same principle should not be applied, so far as it is applicable. Assuming, as we must in this stage of the case, that the injury was caused by the defective car, its defect is undeniable; it was in or attached to a train of similar cars, with nothing so far as the case discloses to show that it in any way differed from the others or was there for a different purpose; but the indications were that it was to be used as any other car, and from its position it became necessary to use it in the -way by which the accident was caused. Of the condition of the car the plaintiff had no knowledge; there was nothing to put him upon his guard. As employe he had no control over the car, no responsibility for its being there, or for its being out of repair. Nor did Ms fellow servants; for any employe whose duty it was to attend to repairs, was not a fellow servant for whose neglect ■ the plaintiff would have no remedy. On the other hand it is a plain duty of the company to provide suitable cars for its employes, use due diligence in keeping them in repair and in providing all reasonable means to protect its servants from increased danger from want.of repairs. The case then reveals clear prima facie evidence of an omission of duty on the part of the company. If there is any explanation it is within the power of the company to give it.
It is contended that the plaintiff on the authority of Nason v. West, supra, should be held to prove that the company had notice of the defect in the car. But Nason v. West, in that respect is not applicable. In that case the accident occurred by the falling in of an oven. But it did not appear that it was for any defect for wMch the defendant was responsible, or which imputed in any degree any fault in him, but the opposite.
This principle of law is by no means a new one, nor is it alone applicable to railway compames. In all cases where a wrong, a [583]*583fault, or an omission of a duty even, is proved, from which, damages result, the wrong, fault, or omission, implies a neglect, in the absence of other evidence, which requires explanation, from the apparently guilty party.
Action to stand for trial.
Peters, C. J., Virgin, Libbey, Emery and Foster, JJ., concurred.