#### Ryan, appellant, *v.*Gilmer, respondent.

Evidence — *declarations of driver of coach about accident.*R., a passenger for Lire, sued G., a common carrier of passengers, to recover damages for injuries caused by tbe overturning of G.’s sleigb. At tbe trial, R. offered in evidence tbe folio-wing statements of G-.’s driver, wbicb were made immediately after tbe accident and while be was in charge of tbe sleigb: “ He could have avoided tbe overturning of the sleigb if. be bad been paying tbe slightest attention. It was bis carelessness and there was no necessity for it.” *Held,*that tbe statements were not within tbe scope of tbe driver’s authority, and were not admissible against G.

Cabriers of passengers *—proof of negligence.*It appeared at tbe trial°tbat G.’s driver bad complete control of tbe sleigb, and the horses were traveling about sis miles per hour over a good level road, when tbe sleigb turned suddenly on one side and threw R. from his seat and thereby inflicted a personal injury. R. could not prove tbe cause of tbe accident, *518and did not contribute thereto, and was nonsuited. *Reid,*that the proof of the occurrence of the accident and infliction of the injury established a *'prima facie*case of negligence against GK, and should have been submitted to the jury.

CONTRACT OB' passenger carriers. In the absence of a special contract, common carriers of passengers are required to carry passengers as safely as human foresight and reasonable care will permit.

*Appeal from Third District, Lewis and Cla/rke County.*

The judgment of nonsuit was entered by Wade, J.

ChuMAsebo *&*ChadwicK and J. G. Spbatt, for appellants.

Tbe court erred in excluding tbe declarations of tbe driver, made at tbe time and immediately after tbe accident. *Morse*v. *Connecticut B. B.,*6 Gray, 450 ; *Matteson*v. *N. JT. Central Co.,*62 Barb. 364; *Price*v. *Powell,*3 N. T. 325; *McCormick*v. *Ba/rnwm,*10 Wend. 105 ; *Barcla/y*v. *Howell,*6 Pet. 498.

Tbe court erred in not submitting tbe question of negligence on tbe part of respondents to tbe jury, and in ordering tbe judgment of nonsuit. Sbearm. *&*Bedf. on Negligence, 329, 330 ; Wbart. on Negbgence, §§ 627,661; *Feital*v. *Middlesex B. Co.,*109 Mass. 398; *Ma/wry*v. *Talmadge,*2 McLean, 161; *Ftm/rchild*v. *California S. Co.,*13 Cal. 602; *Stokes*v. *Saltonstall,*13 Pet. 181; *Boyce*v. *California S. Go.,*25 Cal. 467; *Curtis*v. *Bochester c& S. B. Co.,*18 N. Y. 542; *Derwort*v. *Boomer,*21 Conn. 246.

Tbe doctrine of contributory negligence does not apply to tbis case. Appellants 'did not contribute to tbe overturning of tbe sleigb. Sbearm. *&*Bedf. on Negligence, 32, 36, 37; Wbart. on Negbgence, §301; *Bichmond*v. *Sacramento V. R. Co.,*18 Cal. 357; *Needham*v. *S. F. db S. J. B. Co.,*37 id. 422; 2 Pars, on Cont. 226-228.

W. P. SaNdees and JohNstoN & Toole, for respondents.

Appellants could not recover if they failed in establishing one of these propositions, that tbe alleged injury was caused by the negligence of respondents, and' that tbe jury, from tbe evidence, could compute tbe damages for which respondents were liable.

*519The question of negligence is a mixed one of law and fact. "When facts are presented the court determines whether or not negligence is established. The court should nonsuit a party if it would set aside a verdict in his favor for want of evidence to support it. Questions of negligence are not exceptions to the rule. *Allgro*v. Duncan, 24 How. Pr. 210 ; *Pratt*v. Hull, 13 Johns. 334; *Stuart*v. *Simpson,*1 Wend. 376; *Demeyer*v. *Souzer,*6 id. 436; *Wilds*v. *Hudson B. Go.,*24 N. Y. 430; *Dickens*v. *N. Y. Central B. Go.,*38 id. 21; *Oarsley*v. *White,*21 Pick. 256; *Johnson*v. *Hudson B. Go.,*20 N. Y. 65.

The declarations of the driver were clearly outside of his agency. Sto. on Agency, §§ 144,145; Angelí on Carr., §§ 461,462,434-442; 1 Nash’s P. *&*Pr. 505, 506; *luby*v. *Hudson B. Go.,*3 Smith (N. Y.), 131.

The complaint set out a special contract, not implied or created by law. Appellants must prove it as laid. Story on Bailm., §§ 601, 602.

Neither the court or jury can apportion negligence and render a judgment or verdict for damages, when both contributed to the negligence causing the injury, or the result or consequences after the injury. *BatKbun*v. Payne, 19 Wend. 401; *Button*v. *Hudson B. Go.,*18 N. Y. 251; *Spooner*v. *Brooklyn B. Go.,*31 Barb. 419 ; *Parker*v. *Adams,*12 Mete. 415 ; *Ha/rlow*v. *Humis-ton,*6 Cow. 191.

Blake, J.

The appellants are husband and wife, and bring this action to recover damages for a personal injury sustained by the wife, December 15, 1873, in consequence of the alleged negligence of the respondents. At this time the respondents were carriers of passengers in the Territory and received the fare from appellants for their transportation from Watson to Helena. At a point near Beavertown, the respondents’ sleigh or *“*bob-sled,” in which the passengers were being conveyed, was turned suddenly on one side and Mrs. Byan, one of the appellants, was thrown about seven feet from her seat and received the injury described in the complaint. At the trial, the court sustained the motion of the respondents for a nonsuit and we are called upon to review this ruling.

*520In tbis class of cases it is tbe well-settled rule tbat it was necessary for tbe appellants to prove tbat there was no negligence, or want of due and reasonable care on tbeir part wbieb contributed to tbe injury, and tbat it was caused entirely by tbe want of sucb care on tbe part of tbe respondents. *Southworth*v. *O. C. & N. R. Co.,*105 Mass. 342. In tbis action tbe accident was not tbe effect of any act of tbe appellants, and there is only one question before us for determination. Did tbe evidence tend to prove tbat tbe sleigh was overturned by tbe negligence of tbe respondents, or tbeir servant ?

Tbe appellants claim tbat the court erred in excluding tbe declarations of tbe driver of tbe respondents, wbieb were made immediately after tbe accident and during tbe time tbat he was engaged in tbe performance of bis duties. He then said tbat be was sorry tbat she (Mrs. Eyan) was hurt; tbat be could have avoided tbe overturning of tbe sleigh if be bad been paying tbe slightest attention; and tbat it was bis carelessness, and there was no necessity for it. Tbe representations or admissions of tbis agent will bind tbe respondents, if they were made within tbe scope of tbe authority which bad been confided to him. Story on Agency, § 134. W e think tbat an examination of tbe following cases shows tbat tbis principle is not applicable to the statements of tbe respondents’ driver, which the appellants sought to prove in tbe court below. In *Luby*v. *Hudson R. R.,*17 N. Y. 131, it was held tbat tbe declarations of tbe driver of a car, wbieb bad run against and injured a person, made after tbe accident occurred and while be was in charge óf the car, tbat be could not stop tbe car because tbe brakes were out of order, were not competent against tbe company tbat employed the driver. In *Robinson*v. *Fitchburg R.,*7 Gray, 92, which was an action against a railroad corporation for damages caused by a colbsion through tbe negligence of tbe engineer, it was held that tbe declarations of tbe engineer respecting tbe accident, made a number of days afterward, were not competent against tbe company. Tbe supreme court of tbe United States has recently considered tbe same question in *Packet Co.*v. *Clough,*20 Wall. 528. It was held tbat tbe conversation of tbe captain of a steamboat with a party who was injured in going upon tbe boat, made two and *521one-half days after the accident occurred, in which he stated that the injury was caused by the carelessness of the hands in failing to put out the regular plank, was ■ not competent against the owners of the boat. Mr. Justice StboNG, in delivering the opinion of the court, said: *“*But an act done by an agent cannot be varied, qualified or explained either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. 1 Taylor on Evidence, § 526. The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the *‘ res gestee.’*” In a later case, the same high tribunal held that “ the opinion of an agent, based upon past occurrences, is never to be received as an admission of his principals * * * .” *Insurance Co.*v. *Mahone,*21 Wall. 157. Sir William GeaNT discusses this proposition in *Fairlie*v. *Hastings,*10 Ves. 123, and says: “If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion.” Story on Agency, § 136, and cases there cited; *Anthony*v. *Estabrook,*1 Col. 76, and cases there cited; *M. & M. R. Co.*v. Fenney, 10 Wis. 388.

In the case at bar, what the driver said to the appellants concerning the accident was the narrative of a past occurrence and could not affect the liability of his principals. In the authorities which have been referred to, the number of hours or days that elapsed after the occurrence of the accident complained of, and during which the agent made certain admissions against his principal, is treated as an immaterial fact. If they were uttered before the journey upon which the injured party entered was ended they were mere narration. When the respondents’ driver made the statements to the appellants, which have been specified, “ the accident was past,” and the injury to Mrs. Ryan was complete. “ The only wrong she sustained, if any, had been consummated.” *Packet Co.*v. *Clough, supra.*Therefore the court did not err in excluding the declarations of the respondents’ driver.

It will be necessary to state the testimony of the appellants relating to the alleged negligence of the respondents, to show the nature of the legal question which must now be considered. It *522appears that the appellants had been conveyed in a coach from Watson to a point which is south of Beavertown, where the sleigh or “ bob-sled ” was furnished by the respondents for the purpose of transporting the appellants and express matter and mail sacks. When the accident took place the parties were traveling upon a good level road at the rate of about five or six miles per hour, and the snow on the ground made fine sleighing. The horses were strong and under the control of the respondents’ driver and were stopped immediately, without any difficulty, and the sled did not run out of the road or track. The appellants know of no cause for the upsetting of the sleigh, although Mr. Ryan, one of the appellants, made a careful examination at the time for the purpose of discovering it. Upon this subject, the evidence does not enlighten ns.

When these facts are reviewed it will be seen that only one question can be discussed. Did the appellants support their allegation of negligence on the part of the respondents by producing testimony, which tended to prove that the accident occurred, without the fault of the appellants, under the circumstances which have been pointed out ?

The complaint in this case contains the same allegations as the declaration at common law in similar actions. No contract between the appellants and respondents is set forth in the pleadings, or mentioned in the evidence, which is in conflict with the obligations that the law has imposed upon the respondents as common carriers of persons. The appellants were passengers for hire. What was the duty of the respondents ? They were required to carry the appellants from Watson to Helena as safely as human foresight and reasonable care would permit. The nature and limitations of this obligation have been defined accurately in the following authorities. “Carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient and suitable coaches, harnesses, horses and coachmen in order to prevent those injuries which human care and foresight can guard against.” *Ingalls*v. *Bills,*9 Metc. 1. The proprietor of a stage-coach covenants that he will insure the safe carriage of passengers by the exercise of extraordinary diligence and care, and is responsible for any neglect. *Fairchild*v. *California S. Co.,*13 Cal. 605. *523“ Out of special regard for human life, and acting upon the presumption that every man who commits his person to the charge of others expects from them a higher degree of care for his bodily safety than they would bestow upon the preservation of his property, the law very wisely exacts from a carrier of passengers for hire the utmost care and skill which prudent men are accustomed to use under similar circumstances.” Shearman & Redfield on Negligence, § 266, and cases there cited; Story on Bailments, § 601; *Ficken*v. Jones, 28 Cal. 627; *Wheaton*v. *N. B. & M. R. R.*Co., 36 id. 583 ; *Stokes*v. *Saltonstall,*13 Pet. 181; *The Nitro-Glycerine case,*15 Wall. 537; Angell on Carriers, §§ 521-524, 568, and cases there cited; Wharton on Negligence, § 621, n. 3 ; 2 Kent’s Com. 601 and notes.

Did the respondents violate any of these duties which were incumbent upon them ? The respondents had the exclusive control and management of the sleigh when it was upset. The nature of the accident has been explained by the testimony. Should the question whether there was a want of due and reasonable care on the part of the respondents have been submitted to the jury ? The sufficiency and effect of the evidence on behalf of the appellants appear to be determined in many cases. The supreme court of the United States has considered these questions. In *Stokes*v. *Saltonstall,*13 Pet. 181, the plaintiff commenced an action to recover damages for an injury sustained by his wife by the upsetting of a stage-coach in which she was a passenger. The court held that “ the facts that the carriage was upset, and the plaintiff’s wife injured, are *prima facie*evidence that there was care- • lessness, or negligence, or want of skill on the part of the driver, and throws upon the defendant the burden of proving that the accident was not occasioned by the driver’s fault.” In *Railroad Co.*v. *Pollard,*22 Wall. 348, the doctrine of the case of *Stokes*v. *Saltonstall, srtpra,*was attacked by the counsel for the plaintiff in error, but Mr. Chief Justice Waite said : *“*We see no necessity for reconsidering that case.” In *The Nitro-Glycerine case, supra,*Hr. Justice Field delivered the opinion and said : “ The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a *prima facie*case, which *524tbe carrier must overcome. His contract is shown, *prima facie*at least, to have been violated by tbe injury. ” In *Boyce*v. *California S. Co.,*25 Cal. 460, tbe plaintiff brought tbe action to recover damages on account of personal injuries sustained by him by reason of tbe upsetting of tbe defendant’s coach on which be was a passenger. Mr. Chief Justice SaNDEksoN delivered tbe opinion and said: *“*Admitting for tbe sake of tbe argument, that tbe allegation of negbgence is as narrow as counsel for appellant claims it to be, and that tbe cause of tbe accident is unexplained by tbe testimony, and that tbe general reputation of tbe driver for care and skill is established beyond question by tbe evidence, it does not follow that tbe overturning of tbe coach is to be charged to tbe account of unavoidable accident, or to some cause which human care and foresight could not prevent, and therefore tbe defendant excused from all habihty for tbe consequences to tbe plaintiff. Tbe argument places tbe burden of explanar tion upon tbe shoulders of tbe plaintiff ; but, unfortunately for tbe argument, tbe law places it upon tbe shoulders of the defendant. Upon tbe trial of an action of this character, it is only necessary for tbe plaintiff to prove tbe overturning of tbe coach and tbe injuries caused thereby. Having -done this be may rest, for tbe presumption is that tbe overturning occurred through tbe negligence of tbe coachman, and tbe burden of proving that there has been no negbgence is cast upon tbe defendant. How tbe overturning occurred is no part of tbe plaintiff’s case. Tbe fact that tbe coach did overturn is all that be need estabhsh in •order to recover for such injuries as be may have sustained.., In order to rebut this presumption of negbgence, the defendant must show that tbe overturning was the result of inevitable casualty, or some other cause which human care and foresight .could not prevent, for tbe law bolds him responsible for tbe sbgbtest negbgence, and wib not bold him blameless except upon the most satisfactory proofs. In doing this tbe defendant must necessarily explain bow tbe overturning occurred, and if be fails to do this, tbe presumption of negbgence remains. * * * Counsel, by admitting that tbe overturning occurred, to tbe personal injury of tbe plaintiff, and that such overturning is unexplained by tbe evidence, admits that a cause of action has been established, against *525which he has shown no defense.” In *Yeomans*v. *C. C. S. N. Co.,*44 Gal. 84, the case of *Boyce*v. *California S. Co., supra,*was affirmed, and the court refers to *“*the application of the well-settled principle, that as between a passenger and a common carrier of passengers, the proof of the occurrence of an accident, without fault of the passenger,-is *prima facie*proof of negligence on the part of the carrier.” The legal principles which have been announced are applicable to this case, and are sustained by the authorities. Story on Bailments, § 601, *a; Fairchild v. California S. Co., supra ; Fichen*v. *Jones, supra ; Feital*v. *Middlesex R. Co.,*109 Mass. 405; Angell on Carr., §§ 61, 569, and cases there cited; Shearman & Redfield on Negl., § 280, and cases there cited; *McKinney*v. *Neil,*1 McLean, 540 ; *Stockton*v. *Frey,*4 Gill. 406; *Farish*v. *Reigle,*11 Gratt. 697; *Wilkie*v. *Bolster,*3 E. D. Smith, 327.

It follows that there was evidence relating to the alleged negligence of the respondents, which should have been submitted to the jury. The court erred in assuming that the testimony did not have a tendency to prove that there was.a want of due and reasonable care on the part of the respondents. The authorities which have been cited refer to the upsetting or overturning of a coach or wagon. The respondents used voluntarily a sleigh or “bob-sled” upon a portion of the route between "Watson and Helena, and allege in their answer that this means of conveyance was the most convenient and suitable at the place where the accident occurred. There is nothing in the character of this vehicle which modifies the rules of law that have been referred to.

It is therefore ordered that the judgment of the court below be reversed with costs, and that the action be remanded for a new trial.

*Judgment reversed.*

KNowles, J., concurred.

Wade, C. J.,

dissenting. I hold, with the majority of the court, that the declarations of the driver were properly excluded, but as to the other branch of the case I have serious doubts as to the correctness of the decision and express my own views upon the question as follows:

*526Tbe general tbongb not tbe uniform doctrine of tbe laws is that, where tbe plaintiff in a case of tbis character proves bis journey on tbe coach, the accident and the damages be has suffered, be thereby makes a *prima facie*case against tbe coach owner or proprietor, and that negligence on tbe part of such owner is thereby implied and presumed, and tbe burden is upon him to rebut such presumption.

In tbe case of *Christie*v. *Griggs,*2 Camp. 79, Chief Justice MaNsfeblp says: “I think tbe plaintiff has made *aprima facie*case by proving bis going on the coach, tbe accident and tbe damage be has suffered. It now lies on tbe other side to show that tbe coach was as good a coach as could be made, and that tbe driver was as skillful a driver as could anywhere be found * * * When the breaking down or overturning of a coach is proved, negligence on tbe part of tbe owner is implied. He has always tbe means to rebut tbis presumption, if it be unfounded, and it is now incumbent on tbe defendant to make out that tbe damage in tbis case arose from what tbe law considers a *mere accident.”*

Tbe case of *Stokes*v. *Saltonstall,*13 Pet. 181, decided by tbe supreme court of tbe United States, and which therefore may well be taken as our guide here,' sustains tbe decision in *Christie*v. *Griggs*and substantially decides that where tbe plaintiff proves bis going on tbe coach, tbe accident and tbe injury, negligence on tbe part of the defendant is presumed and can only be rebutted by proof.

Many other cases might be cited to tbe same effect. See *Ware*v. *Gay,*11 Pick. 106; *Stockton*v. *Frey,*4 Gill. 406; *McKenney*v. *Neil,*1 McLean, 540; *Farish*v. *Reigle,*11 Gratt. 697; *Brehm*v. *Great West. R. R. Co.,*34 Barb. 256 ; *Fairchild v. Cal. Stage Co.,*13 Cal. 599; *Ingalls*v. *Bills,*9 Metc. 1.

Granting that these cases conclusively establish tbe doctrine that proof of tbe accident and tbe injury raises tbe presumption of negligence against the defendant which must be rebutted by proof, there is nothing in any of the books requiring tbis proof to come from tbe defendant only. Tbe plaintiff himself, by bis own evidence, may overthrow and destroy tbe presumption in proving tbe drcumstances attending tbe accident.

Tbe overturning of a stage-coach, or other accident, is always *527the result of antecedent causes, and these causes must always give character to the result. A stage-coach may be overturned and occasion injury to the passenger without the fault or neglect of the proprietor or his agent; or by reason of such fault or negligence ; or because of the fault or carelessness of the.passenger; or in consequence of his contributory negligence, and the character to attach to such accident, the presumptions therefrom arising, and the liability thereby resulting are determined, not by the result alone but by the causes that produced it. And if the plaintiff takes it upon himself to show these causes, and thereby exonerates the defendant from all blame, he destroys the presumption which the bare proof of the overturning of the coach creates.

Now in the cases we have cited in which it is held that the presumption of negligence is fastened upon the defendant by proof of the accident and the injury, it will be seen that the attending facts and circumstances reasonably and naturally raise such presumption, as in the case of *Christie*v. Griggs, where the coach wás overturned, and the injury resulted by reason of the breaking of an axeltree. Here the presumption must rest upon the attending cause rather than upon the bare fact that the coach overturned. And so in almost every other reported case wherein it is held that this presumption of negligence is fixed upon the defendant by proof of the accident and the injury, the antecedent facts revealing the cause of the accident, legitimately, and from their very nature, cause the presumption to arise. And it is impossible to say from the cases that this presumption would have arisen but for the surrounding facts and circumstances which imperatively demanded it. Certainly it is more reasonable to suppose that this burden is placed upon the defendant by the proof of a fact that naturally creates it, as the breaking of an axeltree, rather than to jump at the conclusion from the bare happening of the accident, as the overturning of a coach, which might occur without the defendant’s fault.

The natural conclusion is that this presumption has some rela^ tion to and is somewhat dependent upon the manner of the accident and the causes that produced it.

Hr. Parsons (2 Parsons on Contracts, 224 — 5), after a careful interpretation and review of all the cases, arrives at a similar eon-*528elusion. He says: *“*Tbe plaintiff must not merely prove that be bas sustained injury, but must go so much further as to show that he suffered from such accident, or from such other cause as may, with *reasonable probability,*he attributed to the negligence of the defendant. Thus far the *onus*is on the plaintiff. , But then it shifts, and the defendant must prove an absence of negligence or of default on his part.”

That is to say, the plaintiff does not make his *prima facie*case by simply proving the accident and the injury, but he must show something of the nature and cause thereof, and such a state of facts attending the event as, with reasonable probability, causes the presumption of negligence to arise. And the facts proven by the plaintiffs in the reported cases demonstrate that they are in harmony with this rule, and show that the plaintiffs have always proved the attending circumstances and the cause of the accident, in order to cause the presumption of negligence to arise. A stage-coach may be overturned and injury result to the passenger without the fault of the owner or his agent, and from this fact alone the plaintiff ought to be required, in making his *prima facie*case, to show such a state of facts attending the accident as reasonably and naturally raises the presumption of negligence against the defendant. The action is negligence, and as long as the defendant might be without fault negligence ought to be shown, or such a state of facts as naturally causes .the presumption to arise.

Either party may prove the surrounding facts and circumstances. If by the plaintiff, and he shows no facts which naturally and legitimately raises the presumption of negligence, or if he goes further, and shows the defendant without fault, he subjects himself to a *nonsuit;*if by the defendant, and he frees himself from fault or negligence, he recovers a verdict in his favor.

But however much doubt there may be, or if there be no doubt as to what proof causes the presumption of negligence to arise against the defendant, there certainly ought not to be any doubt whatever as to this rule of evidence; that if the proof by the plaintiff first establishes the presumption of negligence, and then absolutely destroys it, his case necessarily fails. And the application of this rule to the facts in the case forms the chief foundation for my opinion herein.

*529Adopt -the doctrine, to the fullest extent, that the bare proof of the accident and the injury raises the presumption of negligence against the • defendant, and yet there is no law or reason for holding that this rule of evidence must be upheld in a case where the plaintiff, after having raised the presumption, absolutely overthrows and destroys it by his own proof. If in proving the accident and the injury he goes beyond this and shows the defendant without fault, and exonerates him absolutely from all negligence and want of care, then his case must fail. He proves himself out of court, and leaves nothing for the defendant to do. And in such a case, in the event of a motion for non-suit, it is the province of the court to pass upon the facts and ascertain if the plaintiff has made a case, and if there is no proof tending to show negligence, and, on the contrary, all the evidence repels the presumption, then such motion should be granted.

Now apply these principles to the case in hand. Do the facts tend to show that the injury to the plaintiff was occasioned under such a state of circumstances as, with reasonable probability, the same may be attributed to the negligence of the defendant ? On the contrary, do not the facts conclusively prove the defendant without fault ?

The testimony, as produced by the plaintiffs, shows that the defendant’s sleigh, with the plaintiffs as passengers, and its load, had accomplished the task of crossing the Prickly Pear range of mountains without accident or trouble, notwithstanding the difficulties and dangers of that dangerous mountain pass, and had arrived in safety on this side of the range, demonstrating, beyond equivocation or doubt, that it was judiciously and properly loaded, and not overloaded, and at the time of the accident was on perfectly level ground, the team attached safe and gentle, and proceeding at a moderate pace, the driver sober, skillful, and showing the utmost care, having his horses under perfect control, as is evidenced by the fact that he stopped them still before they had proceeded eighteen inches after the happening of the accident, the harness in perfect order, the sleigh good and strong, and yet the accident occurred, and the sleigh overturned, and no one could explain the reason why or wherefore. There was no giving away of any part of the sleigh, or the harness, and no fault on the *530part of tbe driver or the horses. Nothing was broken, and everything in any way connected with the sleigh, the load, the harness, the horses and the driver, was in its place and in perfect order, when, upon a level road, the sleigh overturned while proceeding at the moderate rate of between five and six miles per hour.

This is the testimony, and what are the presumptions arising therefrom ? None, it seems to us, adverse to the defendants, but all in their favor, showing them without fault, and presenting a case of as pure an accident as ever occurred, and an accident, too, the cause of which no one has yet been able to explain.

After the presentation of this evidence by the plaintiffs the defendants moved the court for a nonsuit. Now, in examining this evidence to ascertain if the plaintiffs had made a *prima facie*case, if the court followed the rule indicated by Mr. Parsons, it would not look to the accident alone, but would examine into the cause thereof and the attending facts as disclosed by the evidence, and would determine from such facts, if the presumption of negligence naturally and reasonably arises, for, to the extent of showing such a state of facts as raises this presumption, the *onus*is on the plaintiffs by this rule. And so examining the testimony, we say the facts and circumstances attending the accident do not naturally or reasonably raise the presumption of negligence, but, on the contrary, render such a presumption utterly impossible. Therefore the elements that make up the plaintiffs’ *prima facie*case fail. If, however, the rule is invoked, that the bare proof of the accident and the injury makes the plaintiffs’ case, we say it is not applicable to a case where the bare, naked presumption is utterly overthrown by absolute and undisputed facts. And that is this case. The facts established by the plaintiffs, of their own motion, imperatively and conclusively prevent any presumption from arising adverse to the defendants. And upon a motion for a nonsuit the court must place this bare, naked presumption by the side of the overwhelming absolute facts, and if the facts are imperative and conclusive in their nature, of which the court must judge, the motion should prevail. For these reasons I think the motion for a nonsuit properly granted.