58 N.J.L. 230 | N.J. | 1895
The opinion of the court was delivered by
It cannot be denied that it was the duty of the defendant to so carry on the work upon which he was engaged as not to injure other persons who were employed upon other work upon the' same premises, and that if the plaintiff was injured through the carelessness of the defendant, or his servants, in the performance of their work, he is entitled to compensation for such injury.
It is urged, however, on behalf of the defendant, that the plaintiff was bound, in order to entitle him to a verdict, to prove affirmatively that the injury which he received was caused by the negligent act of the defendant, or of his servants ; that mere proof that the plaintiff was. injured by a brick falling from the hod of one of the defendant’s hod-
While it is true, as a general principle, that mere proof of the occurrence of an accident raises no presumption of negligence, yet there is a class of cases where this principle does not govern—cases where the accident is such as, in the ordinary course of things, would not have happened if proper care had been used. In such cases the maxim res ipsa loquitur is held to apply, and it is presumed, in the absence of explanation by the defendant, that the accident arose from want of reasonable care.
A leading case on this subject is Kearney v. London, &c., Railway Co., L. R., 5 Q. B. 411; S. C. on appeal, L. R., 6 Q. B. 759. The facts were that the plaintiff was passing along a highway under a railway bridge when a brick fell from one of the piers on which the girders of the bridge rested and injured him. A train had passed over the bridge shortly before the accident, but the evidence failed to disclose whether it was a train of the defendant company or of another railway company which also used the bridge. The bridge had been built and in use for three years. The Court of Queen’s Bench held that the maxim res ipsa loquitur applied; that as the defendants were bound to use due care in keeping the bridge in proper repair, so as not to injure persons passing along the highway, so unusual an occurrence as the falling of a brick was prima facie evidence from which the jury might infer negligence in the defendants, and the principle was unanimously affirmed by the Court of Exchequer Chamber on the argument of the appeal.
Another case, quite similar in its facts to the one now before us, where this principle was applied, is that of Byrne
In our own state, in the case of Bahr v. Lombard, Ayres & Co., 24 Vroom 233, this maxim was fully commented upon and applied.
The facts in the present case bring it within the application of this principle. The bricks were in the custody of the defendant’s servants at the time when this one fell, and it was their duty to so handle them as not to endanger others who were engaged in other work upon the same premises. This brick could not have fallen of itself, and the fact that it fell, in the absence of explanation by the defendant, raises a presumption of negligence. If there are any facts inconsistent with negligence, it is for the defendant to prove them.
The Court of Common Pleas is advised that the rule to show cause should be made absolute.