try mentioned in the evidence, and that the said poultry was delivered to the plaintiff in a damaged condition, and such condition was caused by the bursting of the city water main, the burden is on the paintiff to show that there was any negligence on the part of the refrigerating company which caused the damaged condition of the poultry."

The court gave defendant's second prayer, but refused the others.

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, and WORTHINGTON, JJ.

Robert H. Smith, for appellant. Bagby & Bagby, for appellee.

provide or keep in working order such outlet or drainage from said cellar, then the plaintiff is entitled to recover in this case, provided the jury further find that said flood of water would not have gotten into the ice box or freezer where the plaintiff's poultry was (if the jury so find) if the defendant company had provided such outlet or drainage, and kept it in working order. "(5) The plaintiff prays the court to instruct the jury that even though they find that the cellar of the cold-storage warehouse of the Baltimore Refrigerating & Heating Company was flooded on December 28, 1904, by the bursting of a city water main one square and a half away from said cellar, and that the damage to the plaintiff's poultry (if the jury find it was damaged) was caused by such flooding, the plaintiff is still entitled to recover in this case, provided the jury further find that the water from the city's main would not have gotten into the ice box or freezer built in said cellar where the plaintiff's poultry was (if the jury so find) if the defendant company had exercised reasonable care, as defined in the plain- | more city. The plaintiff alleges negligence on tiff's third prayer, in the construction of said ice box or freezer, or in keeping the doors to said ice box or freezer closed.

"(6) The plaintiff prays the court to instruct the jury that, if they find for the plaintiff, then the measure of damages is the difference between the market value of the squabs and chickens in their damaged condition and the market price of good and marketable squabs, ducks, and chickens of the same kind at the various times when said poultry was delivered by the defendant to the plaintiff, with interest at 6 per cent. from March 1, 1905, in the discretion of the jury."

WORTHINGTON, J. This suit was instituted by the appellee against the appellant to recover the amount of loss which the former sustained by reason of the deterioration in quality of a large quantity of dressed ducks, chickens, and squabs which he (the plaintiff) had in cold storage for hire, at the defendant's cold-storage ware house at 410 South Eutaw street, in Balti.

the part of the defendant in failing to exercise due and proper care in managing and maintaining its cold-storage warehouse, wherefore the poultry became decayed, mouldy and practically unmarketable. The remote cause of the injury seems to have been the bursting on December 28, 1904, of one of the city's water mains on Eutaw street about 500 or 600 feet north of the defendant's warehouse. The water from this broken main ran underground along one or more of the several pipe lines in the street, and some of it reached and made its way into defendant's cold-storage cellar, flooding the cellar to the height of four or five feet, and submerging

The following prayers were asked by de-a number of boxes containing the poultry in fendant:

question. The cellar remained in this flood"(1) The jury is instructed that no suffi- ed condition for 24 hours or more before the cient evidence has been introduced to show leak could be repaired and the water from that the damage to the plaintiff's poultry the cellar removed. The ice box or refrigerwas caused by any negligence on the part ator where the poultry was stored was the of the defendant, the Baltimore Refrigerat-rear part of the cellar, being separated from ing & Heating Company, and their verdict the front part by a so-called insulated parmust be in favor of said company.

"(2) If the jury believe from the evidence that the plaintiff stored with the Baltimore Refrigerating & Heating Company the poultry mentioned in the evidence, and that the said poultry was damaged while in the warehouses of the refrigerating company by reason of the bursting of the city water main, which caused the water to run into the said warehouse, and if the jury further find that the refrigerating company took such care of said poultry as a prudent man would take under similar circumstances of his own property, then the verdict must be for the defendant, the Baltimore Refrigerating & Heating Company.

tition. In this partition was a door opening from the front part of the cellar or vestibule into the ice box. Under this door was a crevice one-sixteenth, of an inch wide and four and one-half feet long. There was also a small gutter on each side of the cellar floor running under the partition intended to carry off water used in washing the freezer or ice box. This water was collected by means of these little gutters in a hole in the vestibule part of the cellar, and carried out from thence in buckets or barrels. There was, however, no drainage or sewer pipe in the cellar. These facts are undisputed. The plaintiff's witnesses also testified that a coldstorage cellar was not a good place to store "(3) If the jury find from the evidence delicate poultry like this, because there would that the plaintiff stored with the Baltimore be more or less dampness about a cellar

to be elicited thereby related to other occurrences too remotely connected with the is sue in this case to enable the jury to fairly infer therefrom either that this particular poultry was properly prepared and packed or that the injury complained of was due to negligence or want of care on the part of the defendant, yet we are unable to see in what manner the defendant was prejudiced by the answer given. In the case of Baltimore, etc., v. Leonhardt, 66 Md. 70, 5 Atl. 346, cited in support of defendant's contention as to this exception, the evidence was offered by the defendant to show that no accident had ever before happened to a passenger on the upper deck of one of its cars. This court held that the evidence was properly excluded; the reason being, of course, that the defendant could not adduce evidence of proper care on its part on former occasions as tending to show proper care on its part on the particular oc

deteriorate; that poultry properly prepared and packed ought to keep from six to twelve months; that there was nothing in the nature of poultry such as this to render it unmarketable or damaged from being left in cold storage for six months or more; that this poultry was put in cold storage when freshly killed, and after being carefully prepared and packed for that purpose; that it was put in during August, 1904, on to January, 1905, and about the middle of January a box of squabs was taken out and the squabs found to be discolored and dark, and all the poultry was found to be in such a damaged condition that it had to be sold for half price. The defendant's witnesses testified that this cellar was dry as a bone and the proper place for the storage of poultry; that the temperature in the freezer was maintained at 4 to 13 degrees. Two of defendant's witnesses on cross-examination also testified that a freezer is made air-tight, or is suppos-casion then under investigation. In the case ed to be air-tight, but not necessarily watertight; that they did not provide against water. In rebuttal two of the plaintiff's witnesses testified, against the objection of the defendant, that a well-constructed cold-storage cellar should contain a drain pipe or sewer to carry off any superfluous water that might get in there, and also that a freezer or ice box should be made air-tight and water-tight. During the progress of the trial the defendant reserved four exceptions, three to the rulings of the court on the admissibility of certain evidence, and one relating to the prayers. The verdict and judgment being for the plaintiff, the defendant has appealed.

of Wise v. Ackerman, 76 Md. 375, 25 Atl 424, also relied upon by the defendant on this point, the offer was by the plaintiff to show that an accident similar to that sued for in that case had happened on a former occasion. This court held the evidence inadmissible because it could not form "the basis of a well-founded presumption as to the existence of negligence on the part of the defendant as the direct cause of the injury to the plaintiff" in the case then before the court. In the case at bar the evidence is offered by the plaintiff, and shows that on former occasions the poultry stored by plaintiff with the defendant came out all right. While such evidence tended to show that the plaintiff had on former occasions properly prepared and packed the poultry stored by him with the defendant, yet, as we have said, the jury could not fairly infer therefrom how this particular poultry was packed or prepared. At the same time it tended to

of dressed poultry such as this to prevent its keeping in good condition in a cold-storage cellar for several months, and also that the defendant did ordinarily manage and maintain its cold-storage warehouse in a careful and proper manner. The answer, therefore, taken altogether, was much stronger in favor of the defendant than of the plaintiff by whose counsel the question was propounded. For this reason, we think this exception furnishes no reversible error.

1. The first exception is to the ruling of the court in permitting the following question, propounded to the plaintiff, to be answered: "Q. How about the poultry that you prepared and packed in July and August in other years, in the same way, and which you left until January and February follow-show that there was nothing in the nature ing came out? Ans. It came out all right." It is, of course, well settled that the facts of the particular transaction are ordinarily the only legitimate evidence of the injury and the manner and cause of its occurrence, and not other and different occurrences. But it is equally well settled that facts occurring before or after the suit are admissible if they afford a fair and reasonable presumption of the fact to be tried; it being left to the jury to determine their precise force and effect. Brooke v. Winters, 39 Md. 505; Davis 2. The second and third exceptions relate v. Calvert, 5 Gill. & J. 269, 25 Am. Dec. 282. | to the action of the trial court in permitting In the present case this evidence was offered, as stated in appellee's brief, "as tending to show that the injury to the plaintiff's poultry was due to some act on the part of the defendant, and not to either the nature of the poultry itself or to the way it was packed by the plaintiff." While we do not think the question a proper one to have been asked or answered, under the circumstances of this

the plaintiff's witness Gettier in rebuttal to answer the two following questions: "Q. How ought a refrigerator situated as this used by the Baltimore Refrigerating & Heating Company to have been constructed? A. All the refrigerators I have ever seen, and I have been in abattoirs here, and in Washington and in New York, and been through all the abattoirs and they all have sewers in the

broke beside Swift & Co.'s warehouse, at the | puts the burden of proof of negligence upon corner of Eutaw and Camden streets, and we the defendant. More correctly speaking, it have as large, if not a larger, cellar than the may be said to declare a prima facie case to Baltimore Refrigerating & Heating Company, have been made out, and to shift the burden and we did not have a cent of damage be- of proof from the plaintiff to the defendant cause we had a sewer there. Q. I asked you by the presumption of negligence from cerhow the ice box ought to have been con- tain facts recited as a matter of law. Sevstructed, or how they are usually construct-eral authorities outside of this state are cited ed? A. They are usually constructed air- by the attorneys for the respective parties tight and water-tight." The objection to in support of and against the correctness of these questions is in both instances based on this prayer. the ground that the witness had not shown proper qualifications to make him an expert on the subject of the construction of storage warehouses. The admissibility of expert or opinion evidence is largely within the discretion of the trial court, whose judgment is nevertheless always subject to review by this court. Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094. It must be shown that the witness possesses such intelligence and such familiarity with the subject as in the sound discretion of the court will enable him to express a well-informed opinion in regard thereto. Some subjects, of course, require a much higher degree of intelligence and of special knowledge than others. It is there fore said that expert capacity is a matter wholly relative to the subject of the particular inquiry. In the present case, besides the evidence of his qualifications contained in his answer to the first of the above questions, the witness had before the questions were put to him testified that he was in the employ of Swift & Co. engaged in the packing business, and had charge of and looked after the cold-storage department, and had done so for 8 years; that for the last 22 or 23 years he had been working in the cold-storage business; that he had been employed at three or four places where there were coldstorage plants, including the abattoir in Baltimore; that he had been through some of Swift & Co.'s cold-storage plants in New York, Washington, and Norfolk; that he looked after the produce end of Swift & Co.'s business, such as poultry, butter, and eggs; that he had knowledge of defendant's plant from packing goods there for Swift & Co. We think these opportunities for observation, to gether with the experience which he was shown to have had in the cold-storage business, qualified the witness to answer the questions propounded to him.

3. The fourth exception relates to the granting of the plaintiff's six prayers and to the rejection of two of the defendant's prayers. All the prayers are set out in full in the report of this case preceding this opinion. The principal objection urged by the defendant's counsel is to the granting of the plaintiff's second prayer. By that instruction the jury are told that if they find certain facts therein recited, "then the law presumes that the damage to said poultry was caused by the negligence of the defendant."

But we think the substantial question has been passed upon and settled in at least two cases heretofore decided by this court; one of these being the case of Hambleton v. McGee, 19 Md. 43. In this case an action was brought by a liveryman to recover damages for injuries to a horse which had been hired to the defendant. This court, speaking by Bartol, J., said: "We agree with the appellant's counsel that the onus of proving want of diligence and reasonable and proper care was on the plaintiff. But surely it cannot be said that there was no evidence from which the jury might find a want of reasonable care in this case. The horse when hired was sound and in good condition. On the following evening when returned he was badly foundered, hardly able to walk, and died in a few days. One of the witnesses stated that in his opinion the horse was foundered by hard driving. On this point several witnesses testify that a horse may be foundered when properly and carefully used. But that was a question for the jury, properly left to them by the court's instruction." The other case in mind is that of the American District Telegraph Co. v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479. In that case the American District Telegraph Company hired a boy to drive a two-horse team for the plaintiff. The horses ran away while in the boy's care, breaking the vehicle, and so seriously injuring one of the horses that it had to be shot, while the other horse was rendered unsafe to drive. In an action for damages against the telegraph company this court, speaking by Chief Judge Alvey, said: "That, if negligence or want of skill in the bailee or his servant be the ground of action, the onus of proof is on the plaintiff." The former of these two cases comes under the third head of Lord Holt's division of the subject of bailments, as explained in his opinion delivered in the case of Coggs v. Bernard, 2 Lord Raymond's Report 919; and the latter under the fifth head of such division. The fifth head includes all cases where goods are intrusted to the bailee for safekeeping or to be carried, or to have some work done upon them, for hire to be paid to the bailee. But under both heads, when negligence is the ground of the action, the burden of proving negligence is upon the bailor. The case at bar comes under the fifth head, and according to the rule declared in the two opinions of this

gence is on the plaintiff. This does not mean, | consideration of the jury, we think it was however, that the plaintiff must prove the properly rejected. There was evidence propspecific acts of negligence which caused the er to be submitted to the jury, from which injury, evidence from which the jury may in- they could have found want of proper confer such negligence is sufficient. As in the struction of defendant's cold-storage cellar, case of Hambleton v. McGee, supra, while and ice box or freezer located therein, and the court held that the burden of proving that such want of proper construction was negligence was on the plaintiff, yet that there the proximate cause of the injury to plainwas evidence in the case from which the ju- tiff's poultry. The court will not grant a ry might infer negligence without proof of prayer that there is no evidence legally sufthe specific acts of negligence. The vice of ficient to show want of reasonable care on the plaintiff's second prayer is that it de- the part of the defendant, unless there is no clares that negligence may under the cir- evidence in the case from which such want cumstances set forth in the prayer be pre- of reasonable care may reasonably be inferred sumed as a matter of law, whereas it is for by the jury. the jury to determine whether negligence As to the defendant's third prayer, which may be inferred or presumed or not, taking was also rejected, while in the abstract it into consideration all the facts and circum- seems intended to express a correct proposistances of the case. The court is to say tion of law, yet not only is its phraseology whether any facts have been established by somewhat obscure, by reason of the use of the the evidence from which negligence may be word “caused” twice in different senses in close reasonably inferred. The jurors have to say connection with each other, but it also ignores whether from those facts when submitted to the fact that the defendant's witnesses in them negligence ought to be inferred. See testifying to the breaking of the water main Schermer v. Neurath, 54 Md. 491, 39 Am. Rep. and the flood of water that in consequence 397. In the case of Russell v. New Haven ran into the cellar of defendant also testified Steamboat Company, 50 N. Y. 121, Rapallo, to the fact that the freezer was not air-tight J., speaking for the Court of Appeals of that or water-tight, but that there was a crevice state, says, at page 127: "The nature of an under the freezer door, and also an opening accident may itself afford prima facie proof under the partition where the gutter was loof negligence, and we think, as the case cated, which crevice and openings allowed the stood, the judge erred in not submitting the water to run into the freezer, thereby causing question of negligence to the jury." In a the injury complained of, and also that there later case from the same court it is said, cit- was no drain pipe or sewer leading from the ing Russell v. Steamboat Co., supra: "While cellar, from which facts the jury might have it is true as a general proposition that a inferred want of due care without any furbailor charging negligence on the part of the ther proof on the subject. In order to make bailee rests under the burden of proof, yet clear the objection to this prayer, it may be often times slight evidence will shift the bur- useful to say here a word upon the subject den to the bailee." Wintringham v. Hayes, of the burden of proof. As we have already 144 N. Y. 1, 38 N. E. 999, 43 Am. St. Rep. 725. stated, in this case the burden is upon the But that there is sufficient evidence thus to plaintiff to show negligence on the part of shift the burden of proof is not ordinarily the defendant; that is to say, the plaintiff for the court to determine, but for the jury. must show that some negligent act or omisIn Price's Case, 29 Md. 420, this court, speak- sion of the defendant was the proximate cause ing through Alvey, J., says: "It is very true of the injury in order to entitle him to renegligence may in some cases become a mere cover. If the plaintiff, by his testimony in question of law, to be determined by the chief, make out a prima facie case, and the court, upon a given state of facts, either ad- defendant, instead of producing evidence to mitted or to be found by the jury. It is not, negative the facts which the plaintiff's evihowever, the duty of the court to draw in-dence tends to establish, proposes to show a ferences or make deductions from evidence. distinct proposition which avoids the effect To do that falls within the well-defined prov- of the plaintiff's evidence, then the burden of ince of the jury that courts should be ever evidence shifts, and rests upon the party procareful not to invade." The circumstances posing to show the latter fact. If evidence of that case, it is true, were different from tending to prove this fact be adduced, then those in the case at bar, but the principle the onus is cast again upon the plaintiff to enunciated therein as quoted above is equal- show that notwithstanding such distinct fact ly applicable here. We think, therefore, that the adverse party is still responsible because there was harmful error in granting the such fact does not excuse him. Such a deplaintiff's second prayer. fense amounts really to a plea of confession and avoidance. As is said by Thayer in his Prelim. Treatise on Evidence: "The parties are doing the work at the trial that it is the preliminary function of the pleadings to do. Practically they are pleading ore tenus." In this case the defendant confesses the injury,

We understand that there is no objection to the remaining five prayers of the plaintiff, and we think these would fairly have instructed the jury had the erroneous second prayer been omitted altogether.

As to the defendant's first prayer, by which