Examining the case under this rule of law we find that there was no proof tending to show when the warehouse was entered, whether in the night or daytime. It was, it seems, during a large portion of every twenty-four hours in the custody of the government janitors. It does not appear nor is it found whether access to the warehouse was gained through the scuttle or roof or by the ordinary entrances, whether the thieves got in by stealth and broke out through the roof or broke in through the roof. The evidence was clear that access to the roof was gained from an adjoining tenement house by means of a burglar's ladder, and a blank brick wall rising some twenty or twenty-five feet above the roof of the tenement house was scaled by means of this ladder; that the goods were removed from the third story of the warehouse where they were stored, the packages being carefully replaced so as to delay observation and discovery, and the marks removed from the goods in an upper room of the tenement house, hired probably by the thieves for the purpose.

The plaintiffs rested their case upon the pleadings, without proving any demand or refusal, admitting a "robbery," but not attempting to show any negligence in the defendant.

The motion for dismissal of the complaint then made by the defendant on the ground that no negligence had been shown, that there was no evidence of refusal to deliver, and the burden was still upon the plaintiffs, should, I think, have been granted; and its denial may perhaps explain the subsequent finding by the referees.

1 Cf. Stokes v. Saltonstall, 13 Pet. 181, holding that the facts that a stagecoach was upset and plaintiff, a passenger, was injured, make out a prima facie case of negligence.

At common law one injured in person or property by a common carrier may sue on contract or in tort at his option. (B. C. P. Ry. Co. v. Kemp, 61 Md. 619; 48 Am. R. 134; Nevin v. P. &c. Co., 106 Ill. 222.) Under the New York code an action for damages against a common carrier, whether in form ex contractu or ex delicto, is barred after three years. (Webber v. H. &c. Ry., 109 N. Y. 311; 15 N. Y. S. R. 262; 16 N. E. 358; Maxson v. D. L. & W. Ry. Co., 112 N. Y. 559; 20 N. E. 544. Cf. Flemming v. M. S. & L. Ry., 4 Q. B. D. 81, and Pollock on Torts, p. 437.)

SEYBOLT V. THE N. Y. L. E. & W. Rr. Co.

(95 N. Y. 562.- - 1884.)

Lewis E. Carr for appellant.

J. F. Seybolt for respondent.

RUGER, Ch. J. The cause of the accident, whereby the plaintiff's intestate lost his life, was left in some doubt by the testimony, and was altogether a matter of inference for the jury to draw from the circumstances appearing in evidence relating thereto.

No direct evidence was given on the subject by either party, the defendant seeking to establish the inference that it was occasioned by the breaking of an axle by proving from the evidence of its employees and others that the axle of the engine was found broken after the accident, and that its switches were properly set; that the road-bed and machinery of the train were of sound material, in good order and condition, and that the train was carefully and skilfully managed; and the plaintiff, from the nature of the accident, the results produced and the circumstances surrounding it, that it was occasioned by the negligence of the defendant's servants in setting the switches at the place of accident, whereby the train was diverted from the main track and brought in collision with obstructions on a side track, which produced the injury complained of. It was undisputed in the case that the casualty occurred in the immediate vicinity of the switch; that the cars left the main track, following either upon or in the general line of the side track leading from the switch; that they came in collision with cars standing on the side track at a distance of several hundred feet from the switch, and that the proximate cause of the destruction of the mail car was the collision between the train and the cars standing on the side track. These circumstances afforded a strong presumption that the train was diverted from the main track by some disarrangement of the switch. No adequate cause for the various circumstances appeared in evidence except that afforded by the presumption of a misplaced switch.

Notwithstanding the positive evidence of witnesses to the effect that at different times, during the few hours preceding this accident, they had examined these switches and found them properly set and locked, there was sufficient evidence derivable from the undisputed facts, and the conflicting statements as to the situation of the connecting rails of the side track after the accident, to afford a support for the inference, probably drawn by the jury, that the accident was caused by a misplacement of one or both of the switches. There was evidence tending to show that the mail car was thrown from the, side track a distance from thirty to fifty feet down an embankment, and was found to be lying nearly abreast of the engine, at right angles with it, and on fire, immediately after the accident occurred. The situation, not only of this car, but that of the baggage and smoking cars attached to it, was such that it could not probably have been produced except by a collision between a train moving with considerable velocity upon a clear track and a body offering great resistance.

From these facts the jury might very well have concluded that the evidence which attempted to account for the accident, on the theory that the train left the track near the upper switch in consequence of a broken axle, involving as it did the proposition that it must have run nearly four hundred feet over railroad ties and other obstructions before colliding with the cars standing on the side track, was quite improbable, and did not sufficiently account for the results disclosed by other undisputed evidence. There was evidence to support the finding of the jury upon the question of the defendant's negligence, and we see no ground upon which to interfere with the conclusions reached.

At the close of the case the defendant requested an instruction to the jury that "the burden of proof is on the plaintiff to establish the negligence of the defendant. If there is a reasonable doubt on the whole evidence as to the negligence of the defendant, the verdict should be for the defendant." We think the court committed no error in refusing to charge as requested. While it is true, as a general proposition, that the burden of showing negligence on the part of the defendant occasioning an injury, rests in the first instance upon the

plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault. (Caldwell v. N. J. Steamboat Co., 47. N. Y. 291; Edgerton v. N. Y. & Harlem R. R. Co., 39 id. 227; Curtis v. R. & Syracuse R. R. Co., 18 id. 534.) It was said by Judge Grover in the Edgerton Case: "Whenever a car or train leaves the track it proves that either the track or machinery, or some portion thereof, is not in a proper condition, or that the machinery is not properly operated, and presumptively proves that the defendant, whose duty it is to keep the track and machinery in the proper condition, and to operate it with the necessary prudence and care, has in some respect violated his duty.” “The court charged that the defendant was bound to show and give some explanation of the cause of the accident. This portion of the charge must be understood in reference to the facts of this case and as applied to such facts. In this view it was not erroneous." (See, also, The J. Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; Mullen v. St. John, 57 id. 572; Ginna v. Second Avenue R. R. Co., 67 id. 597.) When this request was made the evidence had clearly raised a presumption of negligence against the defendant, and the only question relating thereto which remained for the jury to consider, was whether this presumption had been sufficiently negatived by the evidence introduced by the defendant. Under the authorities cited it would not have been error, even if the court had charged that the plaintiff had established a prima facie case, and the burden of explaining the cause of the accident then rested upon the defendant. The request must be considered with reference to all the facts appearing in the case at the time it was made, and as applied to them we do not think the defendant was entitled to the charge requested.

This request was also properly denied for the reason that it was coupled with the proposition that the jury should find for the defendant if they entertained a reasonable doubt upon the whole evidence as to the negligence of the defendant.

We are not aware of any rule applicable to the trial of issues of fact in civil actions which requires a party upon whom the

burden of proof rests to establish a case free from reasonable doubt. In criminal cases the law, out of tender regard for the rights of accused persons, and the presumption of innocence which always attaches to persons in that situation, gives to the defendant the benefit of any reasonable doubt existing as to his guilt; but in civil actions, unless the issue involves the commission of a crime by some of the parties thereto, the application of such a rule is, we think, unauthorized by the law of evidence.1

The only remaining question is as to the alleged negligence of the plaintiff in permitting about one-fourth of a pane of glass to be out of the window of her house, through which the sparks are supposed to have passed and set fire to the clothing upon the inside. It does not appear when the glass was broken, or that the plaintiff knew it before the time of the fire. But suppose it had been broken for a long time, and the plaintiff knew it, it is but an exceedingly slight cir

1 The explosion of a steam-boiler lawfully in operation on A's premises, whereby B's premises are damaged, does not warrant the inference of negligence. (Losee v. Buchanan, 51 N. Y. 476.) Some authorities make a distinction between cases where a contract relation existed between the parties, and those where it did not exist. (Cosulich v. S. O, Co., 122 N. Y. 118; Huff v. Austin, 46 Ohio St. 386.) A person who has put steam apparatus into a building is not liable for damages caused by its explosion, without proof that he has failed to use ordinary diligence and skill. (Reiss v. N. Y. Steam Co., 28 N. E. 24; 44 A. L. J. 135 (N. Y. App. 1891).)