charged with liability. The negligence charged is in substance that the defendant so negligently kept, used and employed on its premises certain chemicals that an explosion occurred whereby the plaintiff was injured. The undisputed evidence shows that the explosion was caused by the bursting of a cylindrical steel tank filled with carbonic acid gas, and that at the time of the explosion this tank was upon the defendant's premises. It is plain that the mere fact of the explosion of the tank upon the defendant's premises is not sufficient to charge it with negligence. In other words, the defendant's liability cannot be established by proof of the explosion alone. To charge the defendant with negligence there must be some evidence (aside from the presence of the tank on the defendant's premises at the instant of the explosion) to show that it was at that time in its custody and control.

In our opinion, there was an entire absence of such evidence. The defendant's superintendent, in answer to interrogatories, stated that he did not know the cause of the explosion, that the tank was not rightfully on the premises at that time, and was not handled by any employee or other agent of the defendant, and that it was not being handled under his immediate personal supervision. But the jury might not have believed this evidence. Yet the superintendent's denial that the tank was rightfully on the premises would not furnish evidence that it was rightfully there, or in the custody or control of the defendant. All that the evidence presented shows is that the tank at the moment of the explosion was upon the defendant's premises. How it happened to be there, whether rightfully or otherwise, and how long it had remained there does not appear; nor is there any evidence to show that such tanks or their contents were manufactured, used or dealt in by the defendant in connection with its business. There is no evidence to show the nature of the business the defendant was engaged in, and nothing to show that it knew or had any reason to believe that the tank was on its premises until after the explosion occurred. Under these circumstances, there is no evidence to warrant a finding that the defendant had any control over it, or was in any way responsible for its presence. Kendall v. Boston, 118 Mass. 234. McIntire v. Roberts, 149 Mass. 450. McGee v. Boston Elevated Railway, 187 Mass. 569. Saxe

v. Walworth Manuf. Co. 191 Mass. 338. 29 Cyc. 477, 478. See also McNicholas v. New England Telephone & Telegraph Co. 196 Mass. 138.

The rule of res ipsa loquitur cannot be held to apply in this case because it never is applicable unless the defendant has control of the agency which causes the injury.

It follows that judgment must be entered for the defendant in accordance with the terms of the report.

So ordered.

ELLEN T. O'NEIL vs. MICHAEL M. TOOMEY.

Essex. May 18, 1914. - June 16, 1914.

Present: RUGG, C. J., LORING, BRALEY, DE COURCY, & CROSBY, JJ.

Evidence, Matters of common knowledge, Presumptions and burden of proof. Negligence, Res ipsa loquitur.

It is a matter of common knowledge, of which the court takes judicial cognizance, that ice is a hard, brittle and slippery substance, and that a cake of it when being carried is likely to fall and break unless handled carefully.

Where it appears in evidence that a cake of ice, when being carried by a retail ice dealer with ice tongs over his shoulder through the doorway of a kitchen for delivery to a customer, fell to the floor and injured the customer, and where the cause of the fall is not explained, a jury can find that the accident would not have occurred without fault on the part of the defendant and may infer negligence from its happening.

CROSBY, J. The defendant, who was a retail ice dealer, carried a cake of ice into the plaintiff's kitchen for the purpose of leaving it in an ice chest, when it fell, striking the plaintiff's hand and causing the injuries for which this action was brought. The ice, which the defendant held with ice tongs in his right hand over his right shoulder, weighed about fifty pounds and was carried on his back. In delivering the ice he passed through a screen door which opened into an enclosed porch, and thence through the kitchen door into the kitchen. The porch door opened outward; the kitchen door opened inward and swung to the left of a person entering from the porch into the kitchen. The

only witnesses who testified at the trial were the plaintiff and the defendant.

The plaintiff testified that when the defendant came to deliver the ice the screen door was closed and the kitchen or inner door was open; that she "had been inside the house some minutes before the defendant came, and was seated on a chair close to the wall of the kitchen, and about two or three feet from the edge of the kitchen door as it stood open;" that she "was stooping forward in the act of removing a rubber from her right foot;" and that "as the defendant entered the kitchen the cake of ice struck something that sounded like wood and was knocked from the defendant's

back and fell upon . . [her] hand, badly crushing it."

The defendant testified that when he went to the house the plaintiff was ahead of him, coming out of the garden; that both doors were closed; that the plaintiff preceded him into the house and opened both the screen door and the kitchen door, and that when she was struck by the cake of ice she was sitting in a chair in the kitchen; that as he passed into the porch he held the screen door open with his left hand, and as he was passing through the doorway into the kitchen the door "come to and hit this ice and she was seated in the chair someway there, and the door knocked the ice out of the tongs and hit the floor and hit her hand some way, I don't know how." The defendant also testified that the plaintiff asked him how the ice slipped, and that he told her "that she let the door hit the ice."

The jury viewed the plaintiff's house. "It was agreed that the things seen by them should be affirmative evidence." The presiding judge * ordered a verdict for the defendant upon the ground that there was not sufficient evidence to authorize a finding that the defendant was negligent. The plaintiff excepted to this ruling, which presents the only question before us.

The defendant's story as to the cause of the accident, if believed by the jury, would have warranted the ruling made. Still the jury might not have believed it, and, considering all the evidence, including the proper and reasonable inferences to be drawn therefrom, they might have found, as testified to by the plaintiff, that when the defendant entered the house the screen

* Hitchcock, J.

door was closed, that the kitchen or inner door was open, and that the plaintiff "had been inside the house some minutes before the defendant came."

In view of this testimony the jury also might have found that the plaintiff did not open the kitchen door for the defendant, and that in entering the kitchen the defendant carelessly allowed the ice to strike the door jamb, or to come in contact with the door. It is a matter of common knowledge that ice is a hard, brittle and slippery substance, and is liable to break and fall in carrying unless handled carefully.

If the precise cause of the fall was unexplained, yet the jury could have found from their experience as men of the world with a knowledge of ordinary affairs, that such an accident commonly does not happen unless cakes of ice are carelessly handled.

If the accident was not explained, a finding would have been warranted that in ordinary experience it would not have occurred without fault on the part of the defendant. The doctrine of res ipsa loquitur applies in the case of an unexplained accident which, in the ordinary experience of mankind, would not have happened without fault on the part of the defendant. In such a case negligence may be inferred from the happening of the accident. Manning v. West End Street Railway, 166 Mass. 230, 231. Beattie v. Boston Elevated Railway, 201 Mass. 3. McNamara v. Boston & Maine Railroad, 202 Mass. 491.

In Kaples v. Orth, 61 Wis. 531, the plaintiff was sitting on a stairway when a servant of the defendant, an ice dealer, carrying a cake of ice dropped it upon the plaintiff's hand. It was held that negligence might be inferred from the happening of the accident.

While the case is close we are of opinion that a verdict should not have been ordered for the defendant, but that the question of liability was for the jury.

The case was submitted on briefs.

Exceptions sustained.

R. E. Burke & E. E. Crawshaw, for the plaintiff.
E. I. Taylor & J. W. Britton, for the defendant.

JOSEPH J. FLYNN vs. RICHARD T. HOWARD.

Suffolk. May 18, 1914. - June 16, 1914.

Present: RUGG, C. J., HAMMOND, BRALEY, SHELDON, & CROSBY, JJ. Assignment. Evidence, Of Assignment, Competency, Presumptions and burden of proof. Judgment. Practice, Civil, Equitable defense, Order of proof.

In an action by a judgment creditor against one of three who were the judgment debtors, if the plaintiff alleges in the writ and declaration that he brings the action for the benefit of another person, who was an assignee of the judgment, and the defendant alleges and introduces evidence tending to show that one of the judgment debtors other than the defendant had paid for and was the real owner of the judgment, the assignee being merely the nominal owner, evidence as to the amount, nature, time and place of payment of the consideration of the assignment is admissible, and the burden is upon the plaintiff to prove, not only that the defendant owed the amount of the judgment, but also that the assignment to the person for whose benefit the action was brought was valid, and that the amount of the judgment was due to him.

In such action it is improper to exclude a record of the Superior Court, which the plaintiff offers to introduce in evidence at the close of his own case and again at the close of the cross-examination of the defendant and which shows that the defendant brought a suit in equity against the assignee of the judgment and the person whom the defendant alleged was the real owner of the judgment by assignment, seeking to have the action at law enjoined on the grounds set up in his answer in the action at law, and that the suit was heard by a judge, who, having found that the person named as assignee was the real owner of the assignment, caused a decree to be entered dismissing the suit from which no appeal was taken; because the evidence is offered seasonably and is competent upon the issue raised by the answer.

CONTRACT upon a judgment, the plaintiff alleging in the writ that he brought the action for the benefit of one Daniel C. Fletcher, assignee. Writ in the Municipal Court of the City of Boston dated March 12, 1912.

On appeal to the Superior Court, the case was tried before Bell, J. The plaintiff introduced a certified copy of a record of a judgment in the Superior Court, which showed that on December 14, 1906, the plaintiff recovered judgment in an action of contract for $700.55 against one John J. Walsh, one H. Theodore Fletcher and the defendant in this action.

The only other witness for the plaintiff was H. Theodore Fletcher.