If, on the other hand, those facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion of the latter which is consistent with the exercise of proper prudence and care, then the inference of negligence is the only one left to be drawn and nonsuit becomes inevitable."

Although there are many expressions in the New York decisions which do not fully accord with what is said above, those two cases state with a fair degree of accuracy, the rules which have governed the disposition of the cases. Many claims have been made that the Johnson case has been overruled. It has never been done directly, and although the right of the court to consider the habits, conduct, and motives of men does not appear in the later cases that statement seems not far different from the one in the Tolman case which permits the case to go to the jury if the surrounding circumstances reasonably indicate that the accident might have occurred without negligence of the deceased.

The editor of the Albany Law Journal after a careful examination of all the cases decided at that time [Vol. 20, p. 360], states his understanding of the New York rule as follows: "If on the plaintiff's affirmative evidence it clearly appears that he himself was materially negligent he may be nonsuited; otherwise the defendant, if negligence on his part has been shown, must give proofs. If on the whole case, it clearly does not appear that the plaintiff was free from negligence he may be nonsuited; but if the evidence is conflicting the case must go to the jury."

Direct evidence to disprove negligence is not required in the first instance.' Evidence of due care may be given by showing circumstances from which the inference is fairly to be drawn that such fact existed.' The burden may be sustained by direct testimony or by presumptions arising from facts and circumstances already proved in the case.' The burden is on plaintiff of showing that the injury occurred without fault on the part of the person injured or of giving evidence from which the jury may infer

'Button v. Hudson River R. Co. 18 N. Y. 248.

'Hart v. Hudson River Bridge Co. 80 N. Y. 622.

Donaldson v. Mississippi & M. R. Co. 18 Iowa, 289, 87 Am. Dec. 391;
Greenleaf v. Illinois Cent. R. Co. 29 Iowa, 47, 4 Am. Rep. 181.

that he was without fault and that his act did not contribute to the casualty. In such cases the fact of due care may, and in most instances can, only be established by reasonable inference from the attending circumstances proved in the case, which inferences are to be drawn by the jury.'

In Mayo v. Boston & M. R. Co. 104 Mass. 140, in which the injured person was not killed, the court said that the burden of showing due care need not necessarily be borne by affirmative testimony. If the evidence to show defendant's negligence excluded fault on the part of plaintiff the proposition of due care was established.

b. Failure of Suit under this Rule.

In the absence of evidence of due care the action cannot be maintained.' In the absence of proof of due care a nonsuit should be granted. There can be no recovery where the circumstances of the accident are not sufficiently disclosed to warrant any inference upon the question of care or negligence. An action cannot be maintained for the death of a brakeman by falling from a moving train, if the evidence wholly fails to show how he fell and what he was doing at the time. When a person has been killed at a railroad crossing and there are no witnesses of the accident, the circumstances must be such as to show that the deceased exercised proper care for his own safety. When the circumstances point just as much to the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be nonsuited; the presumption that every person will take care of himself from regard to his own life and safety cannot take the place of proof.'

When plaintiff offers no evidence that he was in the exercise of

'Rodrian v. New York, N. H. & H. R. Co. 125 N. Y. 529.

*Mulligan v. New York Cent. & H. R. R. Co. 33 N. Y. S. R. 534.

Barstow v. Old Colony R. Co. 3 New Eng. Rep. 746, 143 Mass, 535; Wakelin v. London & S. W. R. Co. L. R. 12 App. Cas. 41.

Becht v. Corbin, 92 N. Y. 658.

Crafts v. Boston, 109 Mass. 519.

Corcoran v. Boston & A. R. Co. 133 Mass. 507; Riley v. Connecticut River R. Co. 135 Mass. 292.

"Cordell v. New York Cent. & H. R. R. Co. 75 N. Y, 332.

care, but on the contrary the whole evidence on which the case rests shows that he was careless, the court may rightfully instruct the jury as a matter of law that the action cannot be maintained.' The case will not be taken from the jury if the facts proved fall short of requiring as the sole inference from them that a want of ordinary care on the part of the intestate contributed to the injury.'

c. Applications of the Rule.

Where a person attempting to deliver coal at a court-house was killed by the iron grating covering the area falling upon him, and there was nothing to show how he happened to be so situated as to be caught by it, the jury were permitted to draw the inference that the proper discharge of his duties called him there.*

Where a woman was killed at a crossing while riding with her husband who was guilty of negligence, and the evidence did not disclose what her actions were previous to and at the time of the injury, the jury were left to infer her probable course of action and whether or not it was negligent.*

Where a laborer on a railroad was engaged in cleaning snow from a street crossing and an engine backed down upon and killed him, the court ruled that it was for the jury to determine what inferences should be drawn from the facts and circumstances disclosed by the evidence."

Where a night watchman was found dead at the bottom of an area, the court said that plaintiff had furnished the jury with nothing from which they could infer the freedom of the intestate from fault. They were simply furnished with food for speculation and that would not do for the basis of a verdict."

Where a person going to a railroad station was killed by a car running in on a switch, and the circumstances under which he was struck were not developed, and there was nothing in the evidence Gahagan v. Boston & L. R. Co. 1 Allen, 187, 79 Am. Dec. 724. Palmer v. New York Cent. & H. R. R. Co. 112 N. Y. 245.

Galvin v. New York, 112 N. Y. 223.

Hoag v. New York Cent. & H. R. R. Co. 111 N. Y. 202.

Wall v. Delaware, L. & W. R. Co. 54 Hun, 454.

Bond v. Smith, 113 N. Y. 385.

which tended to show due care or the want of it on his part, the court said that it was impossible to infer from the evidence offered that he exercised the care and circumspection properly to be demanded from one in his situation and that the action could not be maintained.'

d. How far Jury may Draw Inference of Due Care.

The Maine Supreme Court said that the fact of a natural instinct of men to preserve themselves from injury was not evidence and was no more than an accompaniment or appurtenance of evidence. It may have some influence on the interpretation of facts affirmatively proved. It pertains to those natural laws in connection with which all evidence may be weighed. Taken singly, it does not constitute proof or shift the burden. It may give character or force to facts already proved. It is a mode of reasoning upon the evidence.'

In weighing the circumstances it may be assumed that all creatures are desirous of preserving their lives and keeping their bodies from harm.' In connection with the facts and circumstances of the case it is competent for the jury to infer the absence of fault on the part of the deceased from the general and well known disposition of men to take care of themselves and to keep out of the way of difficulty and danger.*

The inference of care is only warranted when circumstances are shown which fairly indicate care or exclude the idea of negli gence. The jury cannot be permitted to assume that the deceased had not omitted the precautions which a prudent man would take in the presence of known danger."

While want of contributory negligence may be established by inference drawn from the circumstances, such an inference may not be drawn simply from a presumption that a person exposed to

'Hinckley v. Cape Cod R. Co. 120 Mass. 262.

Chase v. Maine Cent. R. Co. 77 Me. 63, 52 Am. Rep. 746.

Morrison v. New York Cent. & H. R. R. Co. 63 N. Y. 643.

Northern Cent. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545, 31 Md. 357, 100 Am. Dec. 70.

Ilinckley v. Cape Cod R. Co. 120 Mass. 262.

'Riordan v. Ocean SS. Co. 124 N. Y. 655.

danger will exercise care and prudence in regard to his own safety.' Where a person was seen going toward a railroad track, and shortly afterward his body was found in a cattle-guard after having been struck by a train, the court said that there was nothing to show absence of negligence on his part. Doubtless the jury might infer that the deceased was governed by the natural instinct of self-preservation and would not put himself recklessly and consciously in peril of death; but that no presumption exists in the absence of proof that he was exercising due care at the time."

e. Special Circumstances which Relieve from Care.

It seems that the evidence of due care may be less strong in cases where the defendant has by his conduct justified the decedent in taking the course which resulted in his death. It is not necessary to show that a passenger was free from negligence.

Evidence of due care on the part of a passenger may be less strong when the injury is caused by the carrier than though there was no relation between them. Where a person in attempting to cross a railroad track after dark was struck and killed by a train running down grade without steam and with no lights or signals as it approached the crossing, defendant insisted that since there was no witness to testify that deceased looked or listened when he approached the crossing it must be assumed that he did not, and that such omission was negligence on his part; but the court ruled that it was only where it appeared from the evidence that he might have seen had he looked, or might have heard had he listened, that the jury was authorized to find that he did not look and did not listen."

f. Circumstances Showing Negligence.

The very happening of the accident may negative the existence

Wiwirowski v. Lake Shore & M. S. R. Co. 124 N. Y. 420.

Reynolds v. New York Cent. & H. R. R. Co. 58 N. Y. 252.

Newell v. Ryan, 40 Hun, 286; Palmer v. New York Cent. & H. R. R. Co. 112 N. Y. 245.

McKimble v. Boston & M. R. Co. 139 Mass. 542.

5 Parsons v. New York Cent. & H. R. R. Co. 3 L. R. A. 683, 113 N. Y. 363. *Smedis v. Brooklyn & R. B. R. Co. 88 N. Y. 19.