Robert’s, J.,
delivered the opinion of the Court.
This appeal brings before us for consideration a single question, yet one of interest and some importance, the determination of which is not entirely free from difficulty. In the fall of 1892, whilst the defendant was passing from the place of his employment to his home, he walked ovér a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for twenty years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way.
As the plaintiff proceeded on his way to his home the defendant’s train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties ; when the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car and about a half a dozen fell upon him and broke one of his legs in two places and otherwise injured him. In the testimony he says, “he supposed there was a jar on the track.”
The case was tried before a jury, the Court, at the instance-of the appellee, instructing them “that upon the pleadings in the cause and the evidence given to the juiy the plaintiff was not entitled to recover.” If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.
Whilst the general rule undoubtedly is, that the burden of proof that the injury resulted from negligence on the part of the defendant, is upon the plaintiff, yet in some cases, “the very nature of the action may, of itself, and through the presumption it carries, supply the requisite proof.” Wharton on Negligence, par. 421.
Thus when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution which it readily could and should have done; and in the [149]*149absence of satisfactory explanation on the part of the appellee, a presumption of negligence arises against it. In the case of Byrne v. Boadle, 2 Hurl. & C., 722, the plaintiff was walking in a public street past the defendant’s shop, when a barrel of flour fell upon him from a window above the shop and seriously injured him. The Court held that these facts constituted sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence. Pollock, C. B., said: “There are many accidents from which no presumption of negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence.”
Shortly after this decision, a similar case, that of Scott v. London Dock Co., 3 Hurl. & C. 596, was decided in the Exchequer Chamber. The plaintiff proved in this case that while in the discharge of his duties as a customs officer he was passing in front of a warehouse in the dock and was felled to the ground by six bags of sugar falling upon him. The Court 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 defendant, that the accident arose from want of care.”
Then followed the leading case of Kearney v. London, Brighton and South Coast Railway Co., L. R. 5, Q. B. 411. This case underwent great discussion with a view to the settlement of the true principle governing it. The facts were, [150]*150that the plaintiff was passing on a highway under a railway bridge when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron girder bridge resting on iron piers on one side and on a perpendicular brick Wall with pilasters on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a non-suit on the ground that there was no evidence of negligence to leave to a jury. The Court of Queen’s Bench, by a divided vote, held that this was a case to which the maxim res ipsa loquitur was ■ applicable; or, in other words, that there was prima facie evidence of negligence. Kelly, C. B. delivering the opinion on the appeal, said: “We are all agreed that the judgment of the Queen’s Bench must be affirmed * * * The question, therefore, is whether there was any evidence of negligence on the part of the defendants, and by that we all understand such an amount of evidence as to fairly and reasonably support the finding of the jury. The Lord Chief Justice, in his judgment in the Court below, said res ipsa loquitur, and I cannot do better than to refer to that judgment. It appears, without contradiction, that a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train. This, we think, is not only evidence, but conclusive evidence, that it was loose; for otherwise so slight a vibration could not have struck it out of its place. No doubt it is humanly possible that the percussion of the iron girder, arising from expansion and contraction, might have gradually shaken out the mortar, and so loosened the brick; but this is merely conjecture. The bridge had been built two or three years, and it was the duty of the defendants, from time to time, to inspect the bridge and ascertain that the brickwork was in good order and all the bricks well secured. If there were necessity for other evidence, the case'is made still stronger by the evidence of the plaintiff which was uncontradicted on the part of the defendants, that after the accident on fit[151]*151ting the brick to its place several other bricks were found to have fallen out.”
And, again, in the case of Briggs v. Oliver, 4 Hurl. & C. 403, the plaintiff, going to a doorway of a house in which the defendant had offices, was pushed out of the way by his servant, who was watching a packing-case belonging to his master and was leaning against the wall of the house. The plaintiff fell, and the packing-case fell on his foot and injured him. There was no evidence as to who placed the packing-case against the wall or who caused it to fall. The Court held that there was a prima facie case against the defendant to go to the jury.
We have made full reference to the foregoing cases as showing the views of the English Courts upon this question. These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiffs proof, in actions of this kind, should negative all possible circumstances which would excuse the defendant, but it is sufficient if it negatives all probable circumstances which would have this effect.
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Robert’s, J.,
delivered the opinion of the Court.
This appeal brings before us for consideration a single question, yet one of interest and some importance, the determination of which is not entirely free from difficulty. In the fall of 1892, whilst the defendant was passing from the place of his employment to his home, he walked ovér a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for twenty years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way.
As the plaintiff proceeded on his way to his home the defendant’s train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties ; when the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car and about a half a dozen fell upon him and broke one of his legs in two places and otherwise injured him. In the testimony he says, “he supposed there was a jar on the track.”
The case was tried before a jury, the Court, at the instance-of the appellee, instructing them “that upon the pleadings in the cause and the evidence given to the juiy the plaintiff was not entitled to recover.” If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.
Whilst the general rule undoubtedly is, that the burden of proof that the injury resulted from negligence on the part of the defendant, is upon the plaintiff, yet in some cases, “the very nature of the action may, of itself, and through the presumption it carries, supply the requisite proof.” Wharton on Negligence, par. 421.
Thus when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution which it readily could and should have done; and in the [149]*149absence of satisfactory explanation on the part of the appellee, a presumption of negligence arises against it. In the case of Byrne v. Boadle, 2 Hurl. & C., 722, the plaintiff was walking in a public street past the defendant’s shop, when a barrel of flour fell upon him from a window above the shop and seriously injured him. The Court held that these facts constituted sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence. Pollock, C. B., said: “There are many accidents from which no presumption of negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence.”
Shortly after this decision, a similar case, that of Scott v. London Dock Co., 3 Hurl. & C. 596, was decided in the Exchequer Chamber. The plaintiff proved in this case that while in the discharge of his duties as a customs officer he was passing in front of a warehouse in the dock and was felled to the ground by six bags of sugar falling upon him. The Court 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 defendant, that the accident arose from want of care.”
Then followed the leading case of Kearney v. London, Brighton and South Coast Railway Co., L. R. 5, Q. B. 411. This case underwent great discussion with a view to the settlement of the true principle governing it. The facts were, [150]*150that the plaintiff was passing on a highway under a railway bridge when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron girder bridge resting on iron piers on one side and on a perpendicular brick Wall with pilasters on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a non-suit on the ground that there was no evidence of negligence to leave to a jury. The Court of Queen’s Bench, by a divided vote, held that this was a case to which the maxim res ipsa loquitur was ■ applicable; or, in other words, that there was prima facie evidence of negligence. Kelly, C. B. delivering the opinion on the appeal, said: “We are all agreed that the judgment of the Queen’s Bench must be affirmed * * * The question, therefore, is whether there was any evidence of negligence on the part of the defendants, and by that we all understand such an amount of evidence as to fairly and reasonably support the finding of the jury. The Lord Chief Justice, in his judgment in the Court below, said res ipsa loquitur, and I cannot do better than to refer to that judgment. It appears, without contradiction, that a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train. This, we think, is not only evidence, but conclusive evidence, that it was loose; for otherwise so slight a vibration could not have struck it out of its place. No doubt it is humanly possible that the percussion of the iron girder, arising from expansion and contraction, might have gradually shaken out the mortar, and so loosened the brick; but this is merely conjecture. The bridge had been built two or three years, and it was the duty of the defendants, from time to time, to inspect the bridge and ascertain that the brickwork was in good order and all the bricks well secured. If there were necessity for other evidence, the case'is made still stronger by the evidence of the plaintiff which was uncontradicted on the part of the defendants, that after the accident on fit[151]*151ting the brick to its place several other bricks were found to have fallen out.”
And, again, in the case of Briggs v. Oliver, 4 Hurl. & C. 403, the plaintiff, going to a doorway of a house in which the defendant had offices, was pushed out of the way by his servant, who was watching a packing-case belonging to his master and was leaning against the wall of the house. The plaintiff fell, and the packing-case fell on his foot and injured him. There was no evidence as to who placed the packing-case against the wall or who caused it to fall. The Court held that there was a prima facie case against the defendant to go to the jury.
We have made full reference to the foregoing cases as showing the views of the English Courts upon this question. These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiffs proof, in actions of this kind, should negative all possible circumstances which would excuse the defendant, but it is sufficient if it negatives all probable circumstances which would have this effect. Thompson on Negligence, 1229. It is also well settled that the cause of accident must be connected with the defendant, either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent. Higgs v. Maynard, 12 Jur. N. S. 705; Welfare v. L. B. & S. C. Ry., L. R. 4 Q. B. 693; Smith v. G. E. Ry. Co., L. R. 2 C. P. 10. When, however, there is no duty upon the plaintiff, as under the facts of this case, or when the duty which he has to perform has been performed by him, it is clear that the negligence of the plaintiff is out of the question, and if the accident is connected with the defendant the question whether the phrase “res ipsa loquitur” applies or not becomes a question of common sense. Whittaker's Smith on Negligence, 422.
The American cases sustaining the maxim res ipsa loquitur are numerous and to the point. In the case of Cummings v. The National Furnace Co., 60 Wis. 603, the defendant company [152]*152was engaged in unloading iron ore from a vessel by means of a crane to which was attached a bucket. Whilst so engaged the bucket tipped and threw its contents upon a seaman lawfully working upon the deck of the vessel. The Court said: “The accident itself was of such a character as raised a presumption of negligence either in the character of the machinery used or in the care with which it was handled, and as the jury found the fault was not with the machinery, it follows that it must have been in the handling, otherwise there is no rational cause shown for its happening.
The leading American case, however, appears to be Mullin v. St. John, 57 N. Y. 567. The opinion of the Court was delivered by Dwight, C., and is a most able and exhaustive examination of the subject. He cites with approval many of the English and American cases, to which reference is made in this opinion. The case was one in which the walls of a building, without any special circumstances of storm or violence, fell into one of the streets of the city of Brooklyn, knocking down the plaintiff, who was >on the sidewalk, and seriously injuring her. The Court said: “There was some evidence tending to show that it was ■out of repair. Without laying any stress upon the affirmative testimony, it is as impossible to conceive of this building so falling, unless it was badly constructed or in bad repair, as it is to suppose that a seaworthy ship would go to the bottom in a tranquil sea and without collision. The mind necessarily seeks for a cause for the fall. That is apparently the bad condition of the structure. This again leads to the inference of negligence, which the defendant should rebut.”
To like effect are Lyons v. Rosenthal, 11 Hun. 46; Edgerton v. N. Y & H. R. R. R. Co., 39 N. Y. 227; Krist v. M. L. S. & W. R. Co., 46 Wis. 489; Smith v. Boston Gas Light Co., 129 Mass. 318; Claw v. National City Bank, 1 Sweeney, 539; Brehm v. Great Western, &c., 34 Barb. 256; Sullivan v. Vicksburg, Shreveport and Pacific R. Co., 39 La. Ann, 800; Hays v. Gallagher, 72 Pa. St. 136; [153]*153Thomas v. W. U. Telegraph Co., 100 Mass. 156; Dixon v. Pluns, 98 Cal. 384.
We have referred to numerous cases as illustrating the views which we entertain, because the question on this appeal has not heretofore been determined by this Court. Cases resting in contract have frequently received our consideration, and they are generally free from difficulty, because the mere happening of the accident will be prima facie evidence of a breach of contract without further proof, while in those not resting in contract “it mush-nofe-enly-appear that the accident happened, but, the surrounding circumstances must be such as to raise the presumption of a jFailure of duty^on the part of the defendant toward the ^plafnfiffi” Article, Res ipsa loquitur, by Judge Seymour!). Thompson in 10 C. L. J. 261. None of the cases herein relate to those resting in contract.
In all cases of the character we have been considering, the most careful scrutiny should be given to the circumstances attending the accident, and whilst an excellent authority has said that after all the question resolves itself into one of common sense, we would add that it should be of a high order. For it is unquestionably true that the authorities are by no means in accord on the question which arises out of the doctrine of res ipsa loquitur.
The facts of this appeal are very meagre, but they by no means lie on the border line, nor even close to it. Here you find the plaintiff traversing a path over which the defendant had no dominion, for the plaintiff was rightfully there. The defendant moves its cars over its roadway along said path, and from a gondola car there slips an half dozen railroad cross-ties falling upon the plaintiff and seriously injuring him.
The plaintiff was guilty of no negligence in being where he was at the time he was injured, and in so far as the defendant’s rights are involved, the principle is the same whether he was on the land of Mr. Walsh or on his own land. The accident happened at the hour of noon, as the [154]*154plaintiff was on his way to his dinner. There is no contention that it did not happen just as the plaintiff has himself represented. The plaintiff had no control over, nor was he in any way connected with the loading or management of the cars of trains upon defendant’s road.
(Decided December 18th, 1894.)
If the cross-ties had been properly loaded there existed no reasonable probability of their falling off. A cross-tie is defined to be a sleeper, connecting and supporting the parallel rails of a railroad. Stand. Diet. 444. Its figure and dimensions are familiar, and its flat suffaces and weight illustrate how readily they can be loaded so as to form an almost compact body of wood, if reasonable care be exercised in placing them on the flat bottom of the car, and proper latteral support be given them. If by accident, the ties had become displaced, it was a duty imeumbent upon the defendant and its servants to have readjusted them in such manner .as to have prevented the happening of an accident. It was the duty of the defendant and its servants to have carefully loaded said cross-ties upon its cars and it was equally its duty to have exercised reasonable care in seeing that its train was transported in such condition as to avoid all reasonable probability of injury.
If the presumption arising out of the doctrine of res ipsa loquitur finds proper application anywhere, we think this is a case in which it should be applied. In conclusion, taking the proof as we find it in the record, we think the case should have been permitted to go to the jury with proper instructions from the Court.
The judgment must be reversed.
Judgment reversed and new trial, awarded.