The doctrine, then, of the cases is, that where the standard is plain and certain (i.e., to put it as we have stated it elsewhere, where it is matter of general cognizance, so as not to require evidence), it is not error for the judge to lay it down, or to say that, if such and such acts or omissions be proved, the defendant is guilty or not guilty; and a fortiori this is true where the standard has been already defined by law, or where the act is an isolated one, and cannot be aided by evidence. See 7 Am. Law Rev. 654, 655, 658. And when the statement is made, as it often is, that where the facts are found, the question whether they constitute negligence is one of law, it will generally appear, as we have intimated, that the court speak with a case like one of the above before them. Thus in Herring v. Wilmington & Raleigh R. Co., 10 Ired. 402, which was an action for killing one and injuring another of the plaintiff's slaves, the learned court said: "What amounts to negligence is a question of law. . . . The cars were running at the usual hour and at the usual speed, not through a village or over a crossing-place, or turning a point, but upon a straight line, where they could have been seen for more than a mile. The negroes might have been seen at the distance of half a mile. Whether the engineer saw them or not until he was too near to stop does not appear. There is no evidence that he was not in his place and on the look-out. It cannot be inferred from the fact that he made no effort to stop until he got within twenty-five or thirty yards of the negroes, for that is entirely consistent with the supposition that he had seen them for half a mile; because,

...

In concluding this part of the note, it is proper to remark that as the standard is (ordinarily) that of the prudent man, the requirement of due care " or ordinary diligence," and the prohibition of “ordinary negligence" and "gross negligence," to use a common set of terms, implies one and the same thing, to wit, the exercise of that degree of care which prudent men exercise, or should exercise, in similar matters. If the defendant's act fall below the standard, he is liable; and degrees of negligence, as applied to liability, are thus effectually cut off.

See further, as to the province of the court and jury, Baltimore & O. R. Co. v. State, 36 Md. 366, referring to many cases; Barton v. St. Louis, &c. R. Co., 52 Mo. 253; Pendrill v. Second Ave. R. Co., 34 N. Y. Superior, 481; Dickens v. New York Cent. R. Co., 1 Abb. App. Dec. 504; Keller v. New York Cent. R. Co., 2 Abb. App. Dec. 480; Rudolphy v. Fuchs, 44 How. Pr. 155; Feler v. New York Cent. R. Co., 49 N. Y. 47; Bernhard v. Rensselaer & S. R. Co., 1 Abb. App. Dec. 131; Cook v. New York Cent. R. Co., Ih. 432; Jetter v. New York & H. R. Co., 2 Abb. App. Dec. 458; Willard v. Pinard, 44 Vt. 34; Haskford v. New York & H. R. Co., 43 How. Pr. 222;

In another case, the plaintiff was injured by the fall of a large packingcase belonging to the defendant, while making inquiries for the defendant in the door of a house in which the latter had offices. He had received a push from the defendant's servant, who was watching the packing-case; and immediately the case, which stood against a wall of the house, fell and struck him on the foot. There was no evidence why the packing-case fell, or who placed it against the wall. It was held that the facts showed a prima facie case of negligence. Pigott, B., said that it was true that where the evidence was equally consistent with the existence or non-existence of negligence, there was no question for the jury. (See Cotton v. Wood, 8 Com. B. N. s. 568; Smith v. First National Bank, 99 Mass. 605). But inasmuch as packing cases did not usually fall of themselves, unless there had been some negligence in setting them up, the facts appeared to him to be consistent only with the existence of negligence. Bramwell, B., took the same view. Martin, B., thought that the facts were as consistent with the position that there was no evidence of negligence as the contrary, and that therefore the plaintiff had not made out his case. Briggs v. Oliver, 4 Hurl. & C. 403.

In Cox v. Burbridge, 13 Com. B. N. s. 430, the plaintiff, a child, sued for injuries caused by the kick of a horse. It appeared that the horse had been grazing on the highway. The plaintiff was playing in the road, when the horse, which was on the foot-path, kicked him. There was no evidence to show how the horse got to the spot, or that the defendant knew he was there, or that the animal was at all vicious, or that the child had done any thing to

irritate him. The case having been left to the jury, a verdict was given for the plaintiff; whereupon a new trial was granted, on the ground of a want of evidence of negligence. Erle, C. J., said that it might be assumed that as between the defendant and the owner of the soil of the highway (which had not been accepted as such), it might be assumed that the horse was trespassing; or, if the way had been a public highway, that the owner might have been proceeded against under the Highway Act. But in considering the claim of the plaintiff against the defendant, the question whether the horse was a trespasser as against the owner of the soil, or whether he was amenable under the statute, had nothing to do with the case. He also thought that there was no evidence of negligence in the fact that the owner of the horse had allowed the animal to go upon the road unattended. He might have been put there by a stranger, or might have escaped from some enclosure without the owner's knowledge. But even if there were negligence, he thought that the plaintiff had not connected himself with the damage complained of. He thought that the well-known distinction was applicable, that the owner of an animal was liable only when the damage done was such as was likely to be caused by the animal, and that the owner knew it. In such cases there was no remedy without proof of the scienter. (See ante, p. 488.) "The owner of a horse," said the learned Chief Justice, "must be taken to know that the animal will stray if not properly secured, and make its way into his neighbor's corn or pasture. For a trespass of that kind the owner is, of course, responsible. But if the horse does something which is quite contrary to his nature, some

thing which his owner has no reason to expect he will do, he has the same sort of protection that the owner of a dog has; and everybody knows that it is not at all the ordinary habit of a horse to kick a child on the highway." The other judges took the same view as to the necessity of the proof of a scienter of the viciousness in such a case. So, too, it is held that the mere fact of a man's driving on the wrong side of the road is no evidence of negligence in an action brought against him for running over a person who was crossing the road on foot. Lloyd v. Ogleby, 5 Com. B. N. s. 667.

In Welfare v. London & Brighton Railway Co., Law R. 4 Q. B. 693, it was held that no presumption of negligence could be raised from the fact that the plaintiff was injured by the fall of a timber and a roll of zinc from the roof of a portico undergoing repair, under which he was standing. The Chief Justice observed that the only act of negligence that could be suggested in the case was, that the defendants had allowed a person to go upon the roof when it was in an insecure condition or not sufficiently strong to support his weight, so that the plank gave way under the weight of the man passing over it, and that as a consequence the plank fell down and injured the plaintiff. But this was not sufficient. It was incumbent upon the plaintiff to show further that the defendants knew, or had the means of knowing, or were bound to take steps to know, the condition of the roof; and it did not follow that because they knew that the roof needed repairing, they also knew that it would not bear the weight of a

man.

Another ground taken was, that the person upon the roof had not been

shown to be in the employ of the defendant; and upon this ground, and the ground that there was no evidence that the man on the house was negligent, a more recent case before the same court has been distinguished. Kearney v. London & Brighton Railway Co., Law R. 5 Q. B. 411, 413; s. c. Law R. 6 Q. B. 759. In this case the plaintiff was injured by the fall of a brick while passing under a railway bridge extending over the highway. The bridge rested on perpendicular brick walls, having pilasters; and from the top of one of these pilasters the brick fell, shortly after the passing of a train. It was held that these facts raised a presumption of negligence against the defendants. "My own opinion," said Cockburn, C. J., "is, that this is a case to which the principle res ipsa loquitur is applicable, though it is certainly as weak a case as can well be conceived in which that maxim could be taken to apply. But I think the maxim is applicable; and my reason for saying so is this: The company who have constructed this bridge were bound to construct it in a proper manner [there was no evidence, however, that it was not so constructed], and to use all reasonable care and diligence in keeping it in such a state of repair that no damage from its defective condition should occur to those who passed under it, the public having a right to pass under it.

Now, we have the fact that a brick falls out of this structure and injures the plaintiff. The proximate cause appears to have been the looseness of the brick, and the vibration of a train passing over the bridge acting upon the defective condition of the brick. It is clear, therefore, that the structure in reference to this brick was out of repair. It is clear that it was incumbent on the

defendants to use reasonable care and diligence, and I think the brick being too loose affords, prima facie, a presumption that they had not used reasonable care and diligence. It is true that it is possible that, from changes in the temperature, a brick might get into the condition in which this brickwork appears to have been from causes operating so speedily as to prevent the possibility of any diligence and care applied to such a purpose intervening in due time, so as to prevent an accident. But, inasmuch as our experience of these things is that bricks do not fall out when brickwork is kept in a proper state of repair, I think, where an accident of this sort happens, the presumption is that it is not the frost of a single night, or of many nights, that would cause such a change in the state of this brickwork as that a brick would fall out in this way; and it must be presumed that there was not that inspection and that care on the part of the defendants which it was their duty to apply."

Mr. Justice Hennen dissented, and the case was carried to the Exchequer Chamber, where the judgment of the majority below was unanimously affirmed. Law R. 6 Q. B. 759.

In Mullen v. St. John, 57 N. Y. 567, it was decided that the fall of a building into the street was presumptive evidence of a neglect of proper care on the part of the owner. The court said that a person who erected a building upon a city street or upon an ordinary highway was under legal obligation to take reasonable care that it should not fall into the street; and buildings properly constructed did not fall without adequate cause. If no tempest or other external violence prevailed, the fair presumption was that the fall occurred through the

ruinous condition of the building, which could scarcely have escaped the notice of the owner. The case was decided chiefly upon the authority of Kearney v. London & Brighton Railway Co., supra. See further, as to the duty to repair, Kirby v. Boylston Market Association, 14 Gray, 249; Lowell v. Spalding, 4 Cush. 277 ; Oakham v. Holbrook, 11 Cush. 299; Regina v. Watts, 1 Salk. 357; Rector v. Buckhart, 3 Hill, 193.

In Lehman v. Brooklyn, 29 Barb. 234, an action was brought against a city for negligently causing the death of a young child. The proof was that the city kept a well, the mouth of which was level with the sidewalk. The well was in the sidewalk, but two or three feet from the flagging. It was provided with a cover, having a lid opening on hinges. And the child was found in the well. It was held that the plaintiff could not recover.

The Supreme Court of Wisconsin have held that the law will not presume negligence from the mere fact that a person injured in passing over a defective highway had frequently passed over it and knew of its condition. Kavenaugh v. Janesville, 24 Wis. 618. See Maguire v. Middlesex R. Co., 115 Mass. 239.

This presumption of negligence from the mere happening of an accident where res ipsa loquitur—often arises in injuries sustained by railway, steamboat, and stage-coach companies. In Stokes v. Saltonstall, 13 Peters, 181, s. c. below, Taney, 11, a leading case in this country, it was held that in an action against the proprietor of a stagecoach, the fact that the stage was upset and the plaintiff injured was sufficient to raise a presumption of negligence or want of skill in the driver, and to shift upon the defendant the burden of proving that the driver was in every respect