effect of such decisions would seem decidedly unfortunate, and the doctrine has been strongly criticized.170 On the other hand, it has been held that the violation of a statute or ordinance is negligence per se, though some courts draw a distinction, refusing to apply this rule to the ordinance.172

171

It is submitted that the true principle is to be found midway between these opposing doctrines, and is that failure. to comply with such a statute or ordinance is to be deemed prima facie evidence of negligence,178 and in the absence of circumstances showing a proper excuse should be regarded as conclusive, assuming, of course, that such failure is a cause

of the injury.

934, 49 L. R. A. 764, 78 Am. St. Rep. 806 (ordinance requiring vehicles to keep to the right). But the foregoing rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation. Ubelmann v. American Ice Co., 209 Pa. 398, 58 Atl. 849.

170 "It seems to have escaped the attention of the judges who have laid down this rule that it has the effect of clothing common juries with the dispensing power-the power to set aside acts of the Legislature, * *" which thus sink "below the grade of by-laws of corporations, for although the latter can be set aside and disregarded in judicial administration, when deemed unreasonable, yet it is always for the judge, and never for the jury, to decide whether or not they are unreasonable." Thompson on Negligence, vol. 1, § 11. 171 As where the speed limit is exceeded (Central Railroad & Banking Co. v. Smith, 78 Ga. 694, 3 S. E. 397; Fox v. Barekman, 178 Ind. 572, 99 N. E. 989; Westover v. Grand Rapids Ry. Co., 180 Mich. 373, 147 N. W. 630), a child under the statutory age employed (Beaver v. Mason, Ehrman & Co. [1914] 73 Or. 36, 143 Pac. 1000), a crossing obstructed (Lindler v. Southern Ry., 84 S. C. 536, 66 S. E. 995), a vehicle passed on the wrong side (Hamilton, Harris & Co. v. Larrimer [1914] 183 Ind. 429, 105 N. E. 43), a street car not equipped with the required fender (Rudolph v. Portland Ry., Light & Power Co., 72 Or. 560, 144 Pac. 93), or a firearm discharged within town limits (Farrow v. Hoffecker, 7 Pennewill [23 Del.] 223, 79 Atl. 920). 172 Westover v. Grand Rapids Ry. Co., 180 Mich. 373, 147 N. W. 630.

173 See Southwestern Telegraph & Telephone Co. v. Myane, 86 Ark. 548, 111 S. W. 987; Commonwealth Electric Co. v. Rose, 214 Ill. 545, 73 N. E. 780 (cf. Hartnett v. Boston Store of Chicago, 265 Ill. 331, 106 N. E. 837, L. R. A. 1915C, 460).

174 See Jones v. Co-operative Ass'n of America, 109 Me. 448, 84 Atl. 985, L. R. A. 1915E, 745. "It seems to us that the true rule is,

He who asserts must prove. Hence the burden rests continuously upon plaintiff to establish defendant's want of due care. If, at the conclusion of the case, the scales are evenly balanced in the opinion of the jury, and necessarily if the scale of defendant weighs down, then plaintiff loses. In certain cases, however, he may find it very difficult, if not impossible, to prove specifically and in what respect there had been a failure to exercise proper care, and it may be that here he can invoke the doctrine that "the thing itself speaks." This means that the circumstances attendant upon the injury are of such a character as to justify a jury in inferring negligence as to the cause.175 It is sometimes spoken of as a presumption, but this is not quite correct. Nor is the burden which plaintiff has undertaken to bear removed from his shoulders. The jury are not required to find negligence. They are merely permitted to do so. A nonsuit is prevented.1 A nonsuit is prevented.17 What shape the doctrine will finally assume can hardly be predicted. "But," says Professor Wigmore,177 "the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected, unless from a careless construction, inspection, or user. (2) Both inspection and user must have been at the time of the injury in the control of the party charged.

in all such cases, that the violation of such a statute or ordinance should always be deemed presumptive evidence of negligence which, if not excused by other evidence, including all the surrounding circumstances, should be deemed conclusive. But if it appears upon the whole evidence that the circumstances were such as would convince a prudent man that the real object which the legislators had in view would be much better served by the breach of a technical rule than by its strict observance, the defendant should not be held guilty of negligence in such a breach." Shearman & Redfield on Negligence (6th Ed.) vol. 1, p. 26.

175 City of Atlanta v. Stewart & Ray, 117 Ga. 144, 43 S. E. 443. 176 For full discussion of the doctrine, see HUGHES v. ATLANTIC CITY & S. R. CO., 85 N. J. Law, 212, 89 Atl. 769, L. R. A. 1916A, 927, Chapin Cas. Torts, 342; Turner v. Southern Power Co., 154 N. C. 131, 69 S. E. 767, 32 L. R. A. (N. S.) 848. 177 Wigmore on Evidence, vol. 4, § 2509.

(3) The injurious occurrence or condition must have happened, irrespective of any voluntary action at the time by the party injured." The cases in which this doctrine is applied are those in which the injury would not have occurred unless, according to the ordinary experience of mankind, there had been a want of due care on defendant's part.178 It is perhaps chiefly illustrated in actions against carriers for injuries received by passengers.179 But the injury must have resulted "from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation." 180 Thus there will be no inference of negligence where a missile is thrown through the window of a car.181 In another line of cases the principle has been applied where materials or structures have fallen upon parties in public places.182 Further illustrations are given in the note.183.

178 Howser v. Cumberland & P. R. Co., 80 Md. 146, 30 Atl. 906, 27 L. R. A. 154, 45 Am. St. Rep. 332; O'Neil v. Toomey, 218 Mass. 242, 105 N. E. 974; Lyttle v. Denny, 222 Pa. 395, 71 Atl. 841, 20 L. R. A. (N. S.) 1027, 128 Am. St. Rep. 814, 15 Ann Cas. 924; Houston v. Brush & Curtis, 66 Vt. 331, 29 Atl. 380 Scott v. London & St. Katherine Docks Co., 13 L. T. Rep. N. S. 148. 179 Paducah Traction Co. v. Baker, 130 Ky. 360, 113 S. W. 449, 18 L. R. A. (N. S.) 1185; Minihan v. Boston Elevated Ry. Co., 197 Mass. 367, 83 N. E. 871; HUGHES v. ATLANTIC CITY & S. R. CO., 85 N. J. Law, 212, 89 Atl. 769, L. R. A. 1916A, 927, Chapin Cas. Torts, 342; Breen v. New York Cent. & H. R. R. Co., 109 N. Y. 297, 16 N. E. 60, 4 Am. St. Rep. 450. See 13 L. R. A. (N. S.) 601, note.

180 Thomas v. Philadelphia & R. R. Co., 148 Pa. 180, 23 Atl. 989, 15 L. R. A. 416.

181 Thomas v. Philadelphia & R. R. Co., supra. In accord, Spencer v. Chicago, M. & St. P. Ry. Co. (1900) 105 Wis. 311, 81 N. W. 407. 182 Gallagher v. Edison Illuminating Co., 72 Mo. App. 576; Hogan v. Manhattan Ry. Co., 149 N. Y. 23, 43 N. E. 403; Kraljer v. Snare & Triest Co., 221 Fed. 255, 137 C. C. A. 108; Kearney v. London B. & S. C. Ry. Co., 40 L. J. Q. B. N. S. 285; Scott v. London & St. Katherine Docks Co., 13 L. T. Rep. N. S. 148.

183 Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146 (explosion in powder factory); Gould v. Winona Gas Co., 100 Minn. 258, 111 N. W. 254, 10 L. R. A. (N. S.) 889 (escape of gas from street main); GRIFFEN v. MANICE, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630,

The maxim cannot be invoked where the cause of the injury is unknown. It "does not go to the extent of implying that you may from the mere fact of an injury infer what physical act produced that injury; but it means that when the physical act has been shown, or is apparent, and is not explained by the defendant, the conclusion that negligence superinduced it may be drawn as a legitimate deduction of fact. It permits an inference that the known act which produced the injury was a negligent act, but it does not permit an inference as to what act did produce the injury. Negligence manifestly cannot be predicated of any act until you know what the act is. Until you know what did occasion an injury, you cannot say that the defendant was guilty of some negligence that produced that injury. There is, therefore, a difference between inferring as a conclusion of fact what it was that did the injury, and inferring from a known or proven act occasioning the injury that there was negligence in the act that did produce the injury. To the first category the maxim res ipsa loquitur has no application; it is confined, when applicable at all, solely to the second." 184 Hence it was not applied where a passenger on the car of a switchback railway was found lying on the track in a tunnel, it not appearing how or why he had fallen.185 So, "where the injury might well have resulted from any one of many causes, the plaintiff by a fair preponderance of evidence must exclude the operation of those causes for which the defendant is under no legal obligation." 180 Again, even though the cause of the injury is known, the doctrine cannot be invoked, unless "the occurrence as proved points necessarily to negligence of

Chapin Cas. Torts, 336 (fall of elevator); May v. Charleston Interurban R. Co. (1915) 75 W. Va. 797, 84 S. E. 893 (street railway rail charged with electricity); Carroll v. Chicago, B. & N. R. Co., 99 Wis. 399, 75 N. W. 176, 67 Am. St. Rep. 872 (falling window).

184 Benedick v. Potts, 88 Md. 52, 56, 40 Atl. 1067, 41 L. R. A. 478. 185 Benedick v. Potts, supra. In accord, Bahr v. Lombard, Ayres & Co., 53 N. J. Law, 233, 21 Atl. 190, 23 Atl. 167; Eaton v. New York Cent. & H. R. R. Co., 195 N. Y. 267, 88 N. E. 378.

186 Trim v. Fore River Ship Building Co., 211 Mass. 593, 595, 98 N. E. 591, per De Courcey, J.; Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 599, 106 N. E. 365.

Ther

some kind on the part of the defendant." 187 As already stated, the case must be one where the injury could not have happened without negligence according to the ordinary experience of mankind. The doctrine merely excuses lack of precision in the proof.188 Thus, where a passenger was injured at a crossing, by a collision between cars belonging to different carriers and on different roads, the doctrine of res ipsa loquitur would apply only to the carrier of the passenger, and not to the other line, since as to the latter "it cannot be said that in the ordinary course of things a car does not collide with vehicles or persons, except when there has been carelessness in the management of the car." 189

DAMAGE

112. It is the occurrence of damage that perfects the cause of action for negligence,190 and the damage must proximately follow.

If plaintiff's want of care has contributed in producing the entire result, then, as will be seen, there can be no recovery at all. But though he may not have been negligent at first, and hence may be in a position to recover to some extent, he may yet have failed to use reasonable care to minimize the harmful results. Here he cannot hold the defendant responsible for the additional damage which he might thus have avoided. For example, if after having received personal injuries he omit to consult a physician, or to act upon his advice, he cannot then expect to recover for the aggravation due to a failure to take precautions which a reasonable man would have taken.191 Reasonable care is

187 Stelter v. Cordes, 146 App. Div. 300, 130 N. Y. Supp. 688. 188 Davis v. Crisham, 213 Mass. 151, 99 N. E. 959; Robinson v. Consolidated Gas Co. of New York, 194 N. Y. 37, 86 N. E. 805, 28 L. R. A. (N. S.) 586; De Glopper v. Nashville Ry. & Light Co., 123 Tenn. 633, 134 S. W. 609, 33 L. R. A. (N. S.) 913; Christensen v. Oregon Short Line R. Co. (1909) 35 Utah, 137, 99 Pac. 676, 20 L. R. A. (N. S.) 255, 18 Ann. Cas. 1159.

189 Loudoun v. Eighth Ave. R. Co., 162 N. Y. 380, 386, 56 N. E. 988. 190 See supra, p. 74.

191 Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 South.