#### The Cincinnati Traction Company *v.*Holzenkamp.

*Proof of falling of a trolley pole*— TJpon *person standing at car stopping place*— Question *of negligence by traction company —Law of evidence.*

Proof of the falling of a trolley pole from an electric car, when it stopped at a usual stopping place, upon a person standing there for the purpose of getting upon the car, raises the presumption of negligence on the part of the traction company, and unless rebutted the party injured is entitled to recover.

(No. 9820

Decided June 26, 1906.)

Error to the Superior ‘Court.of Cincinnati.

Plaintiff, Anna Holzenkamp, recovered a judgment against the defendant, The Cincinnati Traction Company, for personal injuries received by her by the falling of the trolley poles or one of the trolley poles of one of defendant’s cars as she was about to step upon it on a street in the city of Cincinnati.

She avers that she was standing in the street at a point where the car would be supposed to stop; that the car stopped and thereupon just as she was about to step upon the car the trolleys fell and struck and injured her by reason of the negligence *380of the defendant in that the trolleys were defective and were improperly handled.

The defendant offered no evidence, excepting as to the extent of the plaintiff’s injuries. The undisputed facts are that the plaintiff and three other ladies were standing in the street where there was a “Y” in the track of the defendant and to which place the car would come from the “Y” onto the main track, and where it usually stopped for passengers. The plaintiff and her sister intended to take the car. The sister signalled the car to stop and it did so, but whether in response to her signal or because it was its usual stopping place does not. appear. The ear was of a kind that is operated by means of double trolleys, and the conductor in charge of the car was trying to place the trolleys on thl wires at the time the car stopped, when the pole of one or both of the trolleys snapped and one or both fell striking the plaintiff before she had placed herself in contact with the car.

Before argument the court at request of plaintiff gave the following instruction to the jury:

“If the jury find from the testimony that the plaintiff had gone to the corner of Franklin avenue and Harrison avenue and that thereupon the car of the defendant came to said point and stopped for the purpose of taking the plaintiff on board as a passenger, and that it was at a point near the corner where the cars of the defendant were in the habit of stopping to take on passengers, and that plaintiff was standing in the street adjacent to and by the car track along which the car came going to the city, and that the plaintiff intended to get on the car and was about to do so, and the car stopped at the point where she was standing to enable her to do so; *381and if the jury find that just as the plaintiff was about to step on the car she was struck by the broken or falling trolley, then I charge you that for the purposes of this case the plaintiff was a passenger on the car, and if the plaintiff was then and there struck and injured by the trolley breaking and falling upon her from the said car, then the presumption arises in the absence of other proof that the Traction'Company was guilty of negligence.”

And in its general charge the court said:

‘ ‘ The law is, as applied to the facts of a case like this, that if a piece of iron or heavy metal which forms part of an overhead apparatus of a railroad of this character breaks and falls down and injures somebody, even one passing by, but more particularly one who is there in proper position to and is about to become a passenger upon this railway, that there the law raises a presumption, out of the mere fact that the thing occurred, that it occurred through the negligence of the defendant.

“ And if no evidence is introduced to you to show you by testimony that this apparatus had been properly inspected, that it was properly built, and that it was in all respects such as is usual and proper, and was in a proper condition, and therefore that the accident was simply an accident which no foresight could have prevented, then you are justified in presuming, from the occurrence of the accident itself, that it was through either some defect of the apparatus which could have been remedied and ought to have been remedied, and would have been discovered by proper inspection, or that it resulted through some careless and improper handling, whereby it was made to fall down and produce this injury.”

*382*Messrs. Óutcalt S Foraker,*for plaintiff in error,,

cited and commented upon the following authorities:

*Gordon*v. *Railway,*40 Barb., 546; *Barth*v. *Railway,*142 Mo., 535; *Railway*v. *Gongwahr,*1 O. S. C. D., 30; 22 W. L. B., 280; *Exton*v. *Railway,*62 N. J. Law, 7; *Rogers*v. *Steamboat Co.,*86 Me., 261; *Allender*v. *Railway,*37 Ia., 264; *Warren*v. *Railway,*8 Allen, 227; *Ganiard*v. *Railway,*50 Hun, 22; *Brian*v. *Bennet,*8 C. & P., 724; *Hazelton*v. *Railway,*71 N. H., 589; *Smith*v. *Railway,*32 Min., 1; *Miller*v. *Railway,*66 Minn., 192; *Gaffney*v. *Railway,*81 Minn., 459; Booth on Street Railways, sec. 326; Joyce on Electric Laws, sec. 528; *Donovan*v. *Railway,*65 Conn., 201; *Schepers*v. *Railway,*126 Mo., 665; *Gordon*v. *Railway,*175 Mass., 183; *Holzenkamp*v. *Traction Co.,*14 Dec., 586; 2 N. P. (N. S.), 157; *Davey*v. *Railway,*177 Mass., 106; *Duchemin*v. *Railway,*186 Mass., 353; *Keator*v. *Traction Co.,*191 Pa. St., 102; *Railway*v. *Kister,*66 Ohio St., 326; *Railway v. Wichmann,*70 Ohio St., 446; *Railway*v. *Lockwood,*72 Ohio St., 586; *Pitcher*v. *Railway Co.,*154 Pa. St., 560; *Pitcher v. Railway Co.,*174 Pa. St., 402; *Udell*v. *Railway Co.,*152 Ind., 507; *Baltman Railway Co.*v. *State, etc.,*28 Atl. Rep., 397; *Monroe*v. *Railway Co.,*79 N. Y. App.Div., 587; *Riedy*v. *Railway Co.,*27 Misc. (N. Y.), 527; *Schaefer*v. *Railway Co.,*128 Mo., 64; *Traction Co.*v. *Holzenkamp,*15 Dec., 673; 3 N. P. (N. S.), 537 (dissenting opinion of Hoffheimer, J.); Clark on Street Railway Law, sec. 1; Shearman *&*Redfield on Negligence, 488; Elliott on Railways, pp. 24-6, 2460; Patterson on Railway Accident Law, 210-214; 3 Thompson Commentaries on Negligence, sec. 264; Nellis on Street Railway Accident Law, secs. 2-4; *383*Railway Co.*v. *Carroll,*206 Ill., 318; *Railway Co.*v. *Patterson,*9 App. *D.*C., 423; *Carroll*v. *Railway Co.,*65 S. C., 378; *Baldwin*v. *Railway Co.,*68 Conn., 567; *Jamison*v. *Railway Co.,*55 Cal., 593; *Railway Co.*v. *Merl,*134 Ind., 609; *Keator*v. *Traction Co.,*191 Pa. St., 102.

*Mr. Charles W. Baker,*for defendant in error,

cited and commented upon the following authorities:

*Holzenkamp*v. *Traction Co.,*14 Ohio Dec., 586; *Gordon*v. *Railway,*40 Barb., 546; *Smith*v. *Railway,*32 Minn., 1; 18 N. W. Rep., 827; 50 Am. Rep., 550; *Keator*v. *Traction Co.,*191 Pa. St., 102; 43 Atl. Rep., 86; 44 L. R. A., 546; 71 Am. St. Rep., 758; *Brian*v. *Bennett,*8 C. & P., 724; *Gordon*v. *Railway,*175 Mass., 181; 55 N. E. Rep., 990; *Schaefer*v. *Railway,*128 Mo., 64; 30 S. W. Rep., 331; *Schepers*v. *Railway,*126 Mo., 665; 29 S. W. Rep., 712; *Carney*v. *Railway,*8 Dec., 587; *Donovan*v. *Railway,*65 Conn., 201; 32 Atl. Rep., 350; 29 L. R. A., 297; *Rogers*v. *Steamboat Co.,*86 Me., 261; 29 Atl. Rep., 1069; 25 L. R. A., 491; *Allender*v. *Railway, 37*Ia., 264; 4 Elliott on Railroads, 2460; Booth on Street Railways, sec. 326; Joyce on Electric Law, sec. 528; *Railway*v. *Gongwahr,*1 O. S. C. D., 30 (22 W. L. B., 280); *Railway*v. *Jennings,*89 Ill. App., 335; *Railway*v. *Treat,*75 Ill. App., 327; *Railway*v. *Riley,*39 Ind., 568; *Barth*v. *Railway,*142 Mo., 535; 44 S. W. Rep., 778; *Choate*v. *Railway,*67 Mo. App., 105; *Exton*v. *Railway,*63 N. J. Law, 356; 46 Atl. Rep., 1099; *Haselton*v. *Railway,*71 N. H., 589; 53 Atl. Rep., 1016.

Summers, J.

The record does not show an exception to the giving of the special charge, so that the *384question so ably argued is not presented by the record.

The special charge seems to have been fashioned after the ruling in *Brian*v. *Bennett,*8 C. & P., 724, where an omnibus stopped to take on a person who had hailed it but started just as he was putting his foot on the step so that he was thrown down and injured. The court said “I think that the stopping of the omnibus implies consent to take the plaintiff as a passenger and that it is evidence to go to the jury.” It is to be observed that the facts here are materially different and that the instruction goes farther and that its correctness may be questioned.

The relation of carrier and passenger arises from contract. The passenger must expressly or impliedly have agreed to compensate the carrier to transport him and the carrier must expressly or impliedly have agreed to carry him and performance of the contract must have been commenced and the passenger be under the care of the carrier.

But, as has been said, the question is not presented in the record, and even if an exception to the charge had been noted it would not have been necessary to determine the question, for the court held that the maxim *res ipsa loquitor*applied, and in effect instructed the jury that there was a legal presumption that the defendant was negligent from the fact that the trolley fell and injured the plaintiff although she was not a passenger but only about to become one.

It has been held in some cases that the maxim applies only where the relation of carrier and passenger exists, but, while the presumption may arise when that relation exists from circumstances that, in the absence of such relation, would not give rise to it, *385attention to the reason of the maxim and to decided cases as well, will show that it does not depend upon the existence of that relation.

In Cooley on Torts, 799, the learned author says: ‘ ‘ The rule applied to carriers and passengers is not a special rule to govern only their conduct, but is a general rule which may be applied wherever the circumstances impose upon one party alone the obligation of special care.”

In *Judson*v. *Giant Powder Co.,*107 Cal., 549, 555, which was a case of destruction of property by an explosion of dynamite, Garoutte, J., says: “As was well said by the court in *Rose*v. *Stevens, etc., Co.,*11 Fed. Rep., 438: ‘Undoubtedly the presumption has been more frequently applied in cases of carriers of passengers than in any other class, but there is no foundation of authority or reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relation between., the parties. ’ The carrier’s contract with his passenger is simply to exercise a certain degree of care in his transportation. It is the duty which the law enjoins upon him; and the law also enjoins the duty upon this appellant and all others, in the conduct of their business, to exercise a certain degree of care toward this respondent and all mankind. The duty which the law enjoins in the two cases only differs in the degree of care to be exercised. The principle of law involved is wholly the same; and, as has been said, the reason of the rule is not found in the nature of the relations existing between the party insuring and the party insured. The presumption arises from the inherent, nature and character of the act causing the injury. Presumption arises from the *386doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happéned in the past, under the same conditions,, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.” The maxim is thus stated by Shearman *&*Redfield on Negligence, (5 ed.), sec. 59: “Proof of an injury, occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in 'the absence of explanation by the defendant, that the accident arose from want of care.” The following cases selected at random from a much longer list, will serve to illustrate the application of the maxim in cases where the relation between the parties was not based upon contract. *Mullen*v. *St. John et al.,*57 N. Y., 567, is one of the earliest and a leading case in this country. In that case the wall of a building fell out and a person standing on the sidewalk was injured by the bricks and mortar. It was held that the maxim applied. In *Scott*v. *London Dock Co., 3*Hurl. *&*Colt., 596, an injury had been caused by the falling of bags of sugar on the plaintiff as he was passing by a warehouse. The court said: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management. of defendant or his servants, and the acci*387dent is sncli as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” In *Richmond Ry., etc., Co.*v. *Hudgins,*100 Va., 409, the plaintiff’s horse took fright from the sudden stopping of an electric car and an unusual volume of smoke coming from under it. In *Campbell*v. *Consolidated Traction Co.,*201 Pa. St., 167, the plaintiff was seated in his wagon which was standing on a track of the defendant’s road in one of the streets of the city of Pittsburg. In front of him were two cars, the second car in front of him moved across the. track on an ascending grade. The trolley pole slipped from the wire and the car stopped and then slipped backward about sixty feet and struck the car back of it, and the force of the collision drove the rear car against the plaintiff’s horse and wagon, or the motorman of that car moved it backward to avoid a collision. In *Uggla*v. *West End Street Railway Co.,*160 Mass., 351, the plaintiff while driving on Park Square in Boston, was struck by a broken iron attached to a wire guy. The iron was part of an ear used to clasp a trolley wire and applied to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant’s track. The ear broke with the strain, and one part of it fell, striking the plaintiff on his head. In *Manning*v. *West End Street Railway Co.,*166 Mass., 230, a switch stick flew from the hands of the conductor as he was using it -on the top of an electric car and injured a person on the sidewalk in the street. The conductor was using the stick to free a trolley which had caught in the *388frog, at the junction of some overhead wires. Similar accidents had occurred there half a dozen times before. Held, in an action for personal injuries, that there was evidence of defendant’s negligence, ■either in defective construction of the trolley wires and poles, or in the conductor’s use of the switch stick. In *Thomas*v. *Western Union Telegraph Co.,*100 Mass., 156, the hind wheels of plaintiff’s wagon became entangled with one of the defendant’s wires which was swinging across a public highway. Held, that the fact, unexplained and unaccounted for, that the wire was in such a condition, was in itself evidence for the jury on the issue of negligence of the ■defendant. In *Hogan*v. *Manhattan Railroad Co.,*149 N. Y., 23, a piece of iron fell from an elevated xailioad structure in a city street upon a person lawfully in the street. In *Clarke*v. *Nassau Electric Railroad Co.,*9 App. Div. (N. Y.), 51, the plaintiff’s horse stepped upon one of the rails of the defendant’s tracks, sprang into the air and fell down upon the track where it died in a few minutes. The plaintiff also received a shock when he seized the hames of the harness. In *Jones*v. *Union Railway Co.,*18 App. Div. (N. Y.), 267, one of the span wires that supported the trolley wires of defendant’s railroad broke and swung to the sidewalk where it struck and injured the plaintiff. In *O’Flaherty*v. *Nassau Electric Railroad Company,*34 App. Div. (N. Y.), 74, a. trolley wire used in connection with the defendant’s railroad broke and fell to the ground, and the current shocked the plaintiff. This case is approved without report in 165 N. Y., 624.

The. plaintiff was not only lawfully in the street but she stood where she had an implied invitation from the defendant to stand and it was the duty *389of the defendant to nse reasonable care to avoid injuring her, and the court was warranted in taking judicial notice of the fact, as it did, that such a thing as the breaking of the trolley pole and the falling of the trolley with a portion of the pole does not happen in the ordinary course of events unless there was some negligence either in its construction or in the management of it, and, this being so, the court very properly charged the jury that the plaintiff in the absence. of any evidence tending to rebut the presumption of negligence was entitled to recover for her injuries. The judgment is

*Affirmed.*

Pbice, Cbew and Spear, JJ concur.