1 McElroy v. The Nashua & Lowell R. R. Co., 4 Cush. 400; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468, 486; Steamboat New World v. King, 16 How. 469, 474.
2 Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468, 486. 3 McElroy v. The Nashua & Lowell Railroad Co., 4 Cush. 400.
4 See Saltonstall v. Stockton, Taney, 11; 13 Peters, 181.
5 There is some apparent contradiction in the cases, but the rule stated above in the text seems to reconcile them as nearly as possible. See Tourtellot v. Rosebrook, 11 Met. 460; Holbrook v. The Utica & S. Railroad, 2 Kernan, 236. In this case Ruggles, J., said: "In actions like the present, the burden of proving that the injury complained of was caused by the defendant's negligence lies on the plaintiff. The same rule applies as in an action for an injury to a passenger in a stage-coach. It traveller injured by the gross negligence of the carrier may recover exemplary damages,1 but this is not universally agreed to. Of course the contributory negligence of the passenger will prevent his recovery, as in other cases founded on negligence. Thus a person who gets out of a train at an improper time or at an improper place, may thereby lose any claim he might otherwise have for an injury received.2 But jumping generally happens, however, in cases of this nature, that the same evidence which proves the injury done, proves also the defendant's negligence, or shows circumstances from which strong presumptions of negligence arise, and which cast on the defendant the burden of disproving it. For example, a passenger's leg is broken while on his passage in a railroad car. This mere fact is no evidence of negligence on the part of the carrier until something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumption of negligence immediately arises; not, however, from the fact that the leg was broken, but from the circumstances attending the fact. On the other hand, if the witness who proves the injury swears that at the moment when it happened he heard the report of a gun outside of the car, and found a bullet in the fractured limb, the presumption would be against the negligence of the carrier. It is not correct, therefore, to say that the negligence of the carrier is to be presumed from the mere fact that an injury has been done to the plaintiff. The presumption arises from the cause of the injury or from other circumstances attending it, and not from the injury itself."
1 Taylor v. Grand Trunk Railway Co., 48 N. H. 305 (1869); Hopkins v. Atlantic & St. Lawrence Railroad, 36 N. H. 9. In some cases it is said that to allow exemplary damages the negligence must amount to a wanton disregard of human life and safety, equivalent to malice. See Pickett v. Crook, 20 Wis. 358; Wardrobe v. California Stage Co., 7 Cal. 118; Williamson v. Western Stage Co., 24 Iowa, 171 (1867). A passenger who buys a ticket in New York State from one portion of that State to another in the same State, and receives an injury on the road while in Pennsylvania, is not limited in a suit in New York to the amount prescribed by the Pennsylvania statute in such cases. Doupe v. Genin, 45 N. Y. 119 (1871). If a passenger is injured and settles with the company, and subsequently dies, his widow cannot (under a statute allowing such actions) maintain a second action, on account of such death. There is no new cause of action. Read v. Great Eastern Railway Co., Law R. 3 Q. B. 555 (1868). And see Hodsoll v. Stallebrass, 11 Ad. & El. 301; Whitney v. Clarendon, 19 Vt. 252.
2 Cockle v. London & South Eastern Railway Co., Law R. 5 C. P. 457 (1870); Siner v. Great Western Railway Co., Law R. 4 Exch. 117; from a train in motion in order to avoid a collision, if in a reasonable danger, is no bar to a recovery.1 In New York it has been thought that a carrier might lawfully contract with a passenger, in consideration of an abatement of the whole of his fare, that he would take all the risks of the carriage, including risks arising from the negligence of the agents and servants of the carrier.2 But this has been elsewhere denied.3 § 964. There are quite a number of cases which hold, or seem to hold, that the mere happening of an accident raises, primÔ facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist;4 but a closer examination of all the authorities leads rather to the conclusion that such presumption of negligence arises only where the injury occurs from some defect or mismanagement in the means, apparatus, or servants of the carrier, and for whose condition or conduct he is directly responsible; and mere proof that a passenger was run over and injured does not always cast the burden of proof on the carrier.5 Instances where this presumption properly arises are when a coach breaks down or is overturned,1 or where a railroad train runs off the track,2 or where two trains, both managed by the defendant line, come in collision,8 or where a boiler explodes,4 or other similar cause produces the injury; but it is not safe to say that in every case the plaintiff makes out a primÔ facie case of negligence in the defendant by mere proof of an injury or accident. Negligence must be proved, and the burden is on him whose case rests upon such proof.5
Plant v. Midland Railway Co., 21 Law Times (n. s.), 836; Harrold v. Great Western Railway Co., 14 Law Times (n. s.), 440; Bridges v. North London Railway Co., Law R. 5 C. P. 459, n.; Prager v. Bristol & Exeter Railway Co., Id. 460. Whether riding in a car with an arm or elbow projecting from the car window is such negligence as prevents a recovery for an injury to such projecting arm is yet quite unsettled. Some courts hold that it is. Todd v. Old Colony Railroad, 3 Allen, 18; Holbrook v. Utica & Schenectady Railroad, 12 N. Y. 236; Pittsburg, etc. Railroad v. McClurg, 56 Penn. St. 294; Indianapolis & Cin. Railroad v. Rutherford, 29 Ind. 82. While other tribunals seem to hold the other way. Chicago & Alton R. R. Co. v. Pondrom, 51 I11. 333; Spencer v Milwaukee Railroad Co., 17 Wis. 487.