at said warehouse to get one of his trunks. He was invited into the warehouse to point it out. He followed William H. Huey, a clerk of defendant, into the warehouse for that purpose. Whilst so engaged, the plaintiff fell down the elevatorhole into the cellar, and was injured. About this there can be no dispute, as he was found there in an injured state and taken to the German Hospital. If this were all, the plaintiff would have no cause of action, as he knew of the elevator, and could and should have avoided it. But the plaintiff alleges, and so testified upon the trial below, that he was injured by something falling upon him. He said: "I saw the elevator when I went into the back part of the place, and when I got near to the elevator, something came down and struck me, and scraped my face, and I fell down upon my back." The witness was not able to say what it was that struck him; he did not see anything, nor did any other witness notice an article of any kind in the building out of place. There was no evidence that the boxes and parcels with which the place was filled had not been piled up with proper care, or that any one of them had fallen down. There was not a scintilla of proof that the defendant had been guilty of any negligence; there was absolutely nothing beyond the fact that the plaintiff was lawfully in the defendant's store, and while there, was injured by something, which no witness saw or could describe, falling upon him. Was this sufficient to convict the defendant of negligence?

I do not understand that when A is lawfully upon the premises of B, for business purposes or otherwise, that B is absolutely liable as a guarantor for the safety of A. If an accident occurs to the latter under such circumstances, without negligence on the part of B, I am unable to see how, under any rational rule of law, B is to be held responsible.

The case of Scott v. Docks Company, 3 Hurl. & C. 596, cited in Wharton on Negligence, at page 701, and relied upon by the plaintiff below, differs from this in an essential particular. In that case a custom-house officer, visiting a store upon his lawful business, was injured by the fall of sugar-bags from a loft over a door on the defendant's premises. No explanation was given of the cause of the occurrence. The fact was, however, held evidence of negligence, "as such a passage-way should be guarded from casualties that could be prevented by due care." It will be observed that in the case cited the plaintiff was injured by a bag of sugar falling upon him. If the plain

tiff in this case had been struck by one of the boxes piled up in the store falling upon him, we would have no hesitation in saying that it was evidence that the boxes had been piled negligently. Just here is the pinch of the plaintiff's case. He cannot say what struck him. It may have been the act of some one not in the employ of defendant; possibly a mere trespasser on the premises. The like criticism may be made of the case of Briggs v. Oliver, 4 Hurl. & C. 403, and others cited by defendant in error. The nearest approach to the case in hand is Lake Shore R. R. Co. v. Rosenzweig, 113 Pa. St. 519. In that case the plaintiff could not say what struck him; he could describe certain things around him which might have done so, and he was allowed to recover a verdict of $48,750. That case certainly went much further than any other in this country or in England, in the line of allowing a recovery without evidence. It was heard in the absence of two of the members of the court, and those that sat were not unanimous. We are not disposed to go any further in that direction, or to follow it to the extreme length now asked of us, but we will allow it to stand upon its own facts. Aside from this case I know of no well-considered case that will sustain the one in hand. The mere fact that something fell on the plaintiff's head, without more, is not evidence of negligence on the part of the defend

He cannot be convicted of negligence and compelled to pay a large sum of money without proof. We are not prepared to sustain the doctrine that the owner of property is liable for every injury that may occur to another therein or thereon, in the absence of any evidence that such injury was the result of the negligence of the owner. We are of opinion that the defendant's fifth point should have been affirmed. Judgment reversed.

PRESUMPTION OF NEGLIGENCE WHEN AN INJURY HAS BEEN SUFFERED, AND THERE IS NO EVIDENCE SHOWING WHO WAS AT FAULT. —As a gen. eral proposition, a party who charges negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, and thereby caused the injury complained of: Nitro-Glycerine Case, 15 Wall. 524, 537; Mitchell v. Chicago etc. R. R. Co., 51 Mich. 236; 47 Am. Rep. 566; Philadelphia etc. R. R. Co. v. Stebbing, 62 Md. 504; Atkinson v. Goodrich Transp. Co., 69 Wis. 5; Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 240; David v. Metrop. Ry Co., L. R. 3 Com. P. 591; Chicago R. R. Co. v. Trotter, 61 Miss. 417. If the injury arises from a casualty purely accidental, the party is necessarily left to bear it. It is not enough to show merely that an accident happened, and that injury resulted therefrom: Lewis v. Railroad Co., 54 Mich. 55; 52 Am. Rep. 790; Bennett v. Ford, 47 Ind. 264; Curran v. Warren etc. Mfg. Co., 36

N. Y. 153; Wabash etc. R. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193; and where an event takes place, the real cause of which cannot be traced, or is at least not apparent, it ordinarily belongs to that class of occurrences which are designated as purely accidental, and the party who asserts negligence must show enough to exclude the case from the class so designated: Id. Nevertheless, that an accident may be of such a nature as to raise a presumption of negligence is fully sustained by authority. The doctrine is maintained that proof of the occurrence of an accident which, under ordinary circumstances, would not have happened if due care had been exercised, raises a presumption of negligence, and the burden of proof is then cast upon the defendant to rebut this presumption: Tuttle v. Railroad Company, 48 Iowa, 236; Kaples v. Orth, 61 Wis. 531; Breen v. New York etc. R. R. Co., 109 N. Y. 297. Or, as expressed in an English case, "where the thing is shown to be under the management of the defendant or his servants, 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": Scott v. London etc. Docks Co., 3 Hurl. & C. 596; and see, to the same effect, Kearney v. Railway Co., L. R. 5 Q. B. 411; 6 Id. 759; Bridges v. North London R'y Co., 6 Id. 377; Gee v. Railway Co., 8 Id. 161. In such case, however, it is hardly accurate to say that negligence is presumed from the mere fact of the injury, but rather that it may be inferred from the facts and circumstances disclosed, in the absence of evidence showing that it oc curred without the fault of the defendant. Such a case comes within the principle of res ipsa loquitur; the facts and circumstances speak for themselves, and in the absence of explanation or disproof, give rise to the inference of negligence: Kearney v. Railway Co., L. R. 5 Q. B. 411; 6 Id. 759; Briggs v. Oliver, 4 Hurl. & C. 407; Kirst v. Railroad Co., 46 Wis. 489; Kaples v. Orth, 61 Id. 531; Cummings v. National Furnace Co., 60 Id. 603; Rose v. Stephens etc. Transp. Co., 20 Blatchf. 411. The proof which establishes the injury shows also circumstances from which some negligence or want of care may be attributed to the wrong-doer: Young v. Bransford, 12 Lea, 232, 237. But what particular circumstances shall be sufficient to establish a prima facie case of negligence is often a matter difficult to determine. It has, however, been held, in cases where it appeared that persons passing along public streets or highways had sustained injury by being struck with dangerous substances thrown, or by the falling of objects, from buildings into public strects, that, from the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed: Byrne v. Boadle, 2 Hurl. & C. 722; Scott v. London etc. Docks Co., 3 Id. 596; Lyons v. Rosenthal, 11 Hun, 46; Murray v. McShane, 52 Md. 217; Kaples v. Orth, 61 Wis. 531. So the law casts upon the owners of ruinous buildings adjoining a highway the duty of preventing their being or becoming dangerous to persons lawfully passing along the highway, and failure in such duty, with resulting damage, furnish prima facie evidence of negligence by the maxim, Res ipsa loquitur: Vincett v. Cook, 4 Hun, 318; Mullen v. St. John, 57 N. Y. 567; 15 Am. Rep. 530. These cases go upon the theory that the injurious thing was inherently and intrinsically dangerous, hurtful, and insecure; hence it was necessary for the defendant to show that he was exercising reasonable care at the time of the accident: Id.; Wabash etc. R. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193, 200. It has been held that the mere fact of the explosion of a steamboiler, unexplained, raises a presumption of negligence: Cosulich v. Standard Oil Co., 23 Jones & S. 384; Rose v. Stephens etc. Tranp. Co., 20 Blatchf. 411;

Fay v. Davidson, 13 Minn. 522; Illinois Cent. R. R. Co. v. Phillips, 55 III. 194; but compare Young v. Bransford, 12 Lea, 232; Marshall v. Wellwood, 38 N. J. L. 339. So where an elevator fell without any apparent cause, and injured the plaintiff, the court held that, as ordinarily an elevator properly constructed and properly managed does not fall, and as that elevator did fall, the presumption was that there was something wrong, either with the eleva tor or with the management of it, and that presumption would warrant a verdict for the plaintiff unless it were rebutted by the defendant's evidence: Gerlach v. Edelmeyer, 15 Jones & S. 292; 88 N. Y. 645. So the fact that telegraph wires are found swinging across a highway, at a height to obstruct and endanger ordinary travel, is in itself, unexplained, evidence of negli gence: Thomas v. Western Union Tel. Co., 100 Mass. 156; compare Wabash etc. R. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193.

In cases which involve the duties of carriers who contract to carry passengers safely to a particular destination, proof of an injury ordinarily estab lishes a prima facie case of negligence in favor of the passenger, which the carrier must overcome: Cleveland etc. R. R. Co. v. Newell, 104 Ind. 264; 54 Am. Rep. 312; Smith v. St. Paul etc. R. R. Co., 32 Minn. 1; 50 Am. Rep. 550, and recent cases collected in note 553-560; Nitro-Glycerine Case, 15 Wall. 537. A prima facie case is made out by proof that the relation of carrier and passenger existed between the parties; that an accident occurred resulting in injury to the passenger; and that it was occasioned by the failure of some portion of the machinery, appliances, or means provided for the transportation of the passenger. This proof being made, a presumption of negligence on the part of the carrier arises, and the plaintiff is not bound to go further, and show the particular defect or cause of the accident, until the presumption is rebutted: Wall v. Livezay, 6 Col. 465. But the rule is held to be confined to cases in which the accident results from defective track, vehicles, machinery, or motive power of the carrier, and that in other cases the negligence must be proved: Federal Street etc. R'y Co. v. Gibson, 96 Pa. St. 83; and see Wilson v. Railroad Co., 26 Wis. 278; Mitchell v. Chicago etc. R. R. Co., 51 Mich. 236; 47 Am. Rep. 566. As illustrating the rule, it has been held that negligence is to be presumed from the overturning of a car: Denver etc. R. R. Co. v. Woodward, 4 Col. 1; or a stage-coach: Wall v. LiveRay, 6 Id. 465; so if a car is thrown from the track and crushed, and there is a broken rail: George v. Railroad Co., 34 Ark. 613; so the fact of a collision between cars belonging to the same company upon a railway track raises a presumption of negligence on the part of the company: Smith v. St. Paul etc. R. R. Co., 32 Minn. 1; 50 Am. Rep. 550; so where a passenger on a streetrailway car is injured by a sudden jerk of the car in transit: Dougherty v. Missouri R. R. Co., 81 Mo. 325; 51 Am. Rep. 239. But where a passenger on a street-car was struck and injured by a passing load of hay, it was held that, in order to make the company liable, the passenger must prove, not only that he was without fault, but that the company was negligent: Federal Street etc. R'y Co. v. Gibson, 96 Pa. St. 83. In a more recent case, however, a passenger upon a steamboat received serious injuries by reason of an explosion that took place thereon, which subsequently caused his death. In an action against the company, the defendant proved conclusively that the explosion was not of the boiler or machinery of the boat, and gave evidence to show that it was not caused by gunpowder or petroleum; but neither the plaintiff nor the defendant gave any testimony which established the cause of the explosion. The court below gave binding instructions to the jury to find for the defendant, which the court, on appeal, held to be error. And

the broad doctrine was asserted that the mere happening of an injurious accident to a passenger while in the hands of the carrier will raise prima facie a presumption of negligence, and throw the onus on the carrier of showing the absence of negligence by him: Spear v. Philadelphia etc. R. R. Co., 119 Pa. St. 61; citing Laing v. Calder, 8 Id. 482; Sullivan v. Railroad Co., 30 Id. 239; Railroad Co. v. Norton, 24 Id. 465. The fact that a stage-plank, placed for the use of passengers in landing from a steamboat, fell while a passenger, in the exercise of due care, was walking over it, was held sufficient to create a presumption of negligence on the part of the owners of the boat: Eagle Packet Co. v. Defries, 94 Ill. 598; 34 Am. Rep. 245.

Although the presumption of negligence from the fact of an accident re sulting in injury has been more frequently applied in cases against carriers of passengers than in any other class of cases, yet there is held to be no foundation in authority or in reason for any such limitation of the rule. The presumption arises from the nature of the act, not from the relations between the parties: Rose v. Stephens etc. Transp. Co., 20 Blatchf. 411; Cosulich v. Standard Oil Co., 23 Jones & S. 384, 393. But the maxim, Res ipsa loquitur, has no application in the case of an accident which is claimed to have happened through the negligence of the defendant, where the cause of the accident is known to a certainty: Brennan v. Gordon, 3 N. Y. St. Rep. 604; and see Muster v. Railroad Co., 61 Wis. 325, 329.

The supreme court of Indiana, after a careful review of the authorities, deduces the rule that in order that liability may attach for injury occasioned by something not inherently dangerous and defective, which is found upon the grounds of or in use by one who is under a qualified obligation to the injured person, it must be shown that the defendant either knew, or that by the exercise of such reasonable skill, vigilance, and sagacity as are ordinarily possessed and employed by persons experienced in the particular business to which the thing pertains he should have known, of its dangerous and defective condition, and that the natural and probable consequence of its use would be to produce injury to some one: Wabash etc. R. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193. See also Curran v. Warren Mfg. Co., 36 N. Y. 153; Nason v. West, 78 Me. 253; Dubois v. Kingston, 102 N. Y. 219.

GIVEN'S APPEAL.

[121 PENNSYLVANIA STATE, 260.]

JUDGMENTS, RESTRAINING ENFORCEMENT OF. -COURT SITTING AS COURT OF EQUITY HAS NO POWER to interfere with the records of the common pleas, and strike therefrom a judgment entered by that court; but if a proper case is presented, it may enjoin the plaintiff from proceeding to enforce the judgment.

BILL IN EQUITY WILL LIE TO RESTRAIN ENFORCEMENT OF JUDGMENT ENTERED upon a bond given in settlement of the criminal charge of forgery, if the defendant has had no day in court, and has not been guilty of laches in setting up the defense when he had an opportunity to do so. But where the complainant, pending an appeal from a decree erroneously dismissing such bill, obtains a rule to show cause, and an order opening the judgment, and admitting him to a defense, and these latter proceedings appear of record, the dismissal of the bill will be affirmed.