119 Ill. App. 481 | Ill. App. Ct. | 1905
delivered the opinion of the court.
It is insisted by the attorneys for plaintiff in error that the mere fact of the collision causing an injury to plaintiff while he was riding as a passenger on defendant’s car, and himself in the exercise of ordinary care, raises a presumption of negligence; and that hence the instructions above set forth were erroneous and should not have been given. Such presumption would no doubt arise where the injury to a passenger is caused by agencies wholly under the control of the carrier. Under such conditions a prima facie case of negligence may be made by showing the happening of the accident and a consequent injury to the passenger, himself in the exercise of ordinary care. The duty would then he imposed upon the carrier to explain or account for the accident and to show in defense that it resulted from a cause for which the carrier was not responsible. But where the plaintiff’s own evidence shows the accident to have been due to a cause beyond the control of the carrier, as vis major or the tort of a strangpr, the reason for presuming it to have been caused by negligence on the part of the carrier is entirely wanting. Where a collision occurs between cars of the same company, such presumption may be indulged. But where some vehicle unconnected with and beyond the control of a raiload company has collided with one of the latter’s cars on its own track, no such prima facie case is ordinarily made out as suffices to throw the burden upon the carrier to prove itself not guilty of negligence. In Chicago City Ry. Co. vs. Rood, 163 Ill., 477-483, it is said: “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.” To the same effect are Federal St. & P. V. Ry. Co. v. Gibson, 96 Pa. St., 83; Potts v. Chicago City Ry. Co., 33 Fed. Rep., 610-611; C. City Ry. Co. v. Catlin, 70 Ill. App., 98-99; Elwood v. C. C. Ry. Co., 90 Ill. App., 398-399; N. C. Street R. R. Co. v. O’Donnell, 115 Ill. App., 110.
The question as to when the presumption against the defendant carrier arises and when the burden is upon the plaintiff to prove the defendant guilty of the negligence charged, seems to have depended in some cases on the facts of the particular case. Thus in L. & N. R. R. Co. v. Kuhn, 86 Ky., 578, cited in W. C. St. R. R. Co. v. Martin, 154 Ill., 523-529, the plaintiff was a passenger on a street car which was run into by a train while passing a railroad -crossing at night. It was held the burden of proof was on the street car company to show, if such was the case, that the injury did not result from its own want of diligence, but from the negligence of the railroad company. See also Osgood v. Los Angeles Traction Co., 137 Cal., 280-283-4.
In the case at bar the cause of the accident was that a fire engine outside off and beyond the control of the defendant collided with the car in which the plaintiff was riding. Finding no material error in the instructions complained of, the judgment of the Circuit Court will be affirmed.
Affirmed.
