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the appliances of transportation or in the conduct of the business, and not from any cause wholly disconnected therewith. If a passenger seated in a railroad car is injured in a collision by the upsetting of the car, breaking of a wheel, axle, or other part of the machinery, he is not required to do more, in the first instance, than prove the fact and show the nature and extent of the injury. A prima facie case for plaintiff is thus made out, and the onus is cast on the carrier to disprove negligence. It is reasonable that it should be so, because the company has within its possession and under its control almost exclusively the means of knowing what occasions the injury, and of explaining how it occurred, while, as a general rule, the passenger is destitute of all knowledge that would enable him to present the facts and fasten the negligence on the company.

"When a passenger is injured by any accident connected with the means or appliances of transportation, there naturally arises a presumption that it must have resulted from some negligent act of omission or commission of the company or some of its employes; because, without some such negligence, it is very improbable that the accident would have occurred. That is the basis on which the presumption rests, and it stands as proof of the negligence until it is successfully rebutted. It arises not from the naked fact that an injury has been inflicted, but from the cause of the injury, or from other circumstances attending it.

"It follows from what has been said that the learned judge of the Common Pleas erred in directing the jury to begin their consideration of the case 'with the fact established that the injuries were the result of the negligence of the defendant.'

The com

The decision in the above case is very able and convincing, but it is, in my judgment, fallacious and erroneous. mon law obligation of a common carrier, is that he shall deliver at its destination the property received by him, without damage while in his hands, unless prevented by the act of God or the public enemy. Mr. Justice Wright, of the New York Court of Appeals, in Michaels v. N. Y. Cent. R. R. Co., 30 N. Y., 564, speaking of the "Act of God" as used in the case of carriers,

says: "All the cases agree in requiring the entire exclusion of human agency from the cause of the injury or loss. If the loss or injury happen in any way through the agency of man, it cannot be considered the act of Gcd; nor even if the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of natural causes that work to their injury, is he excused. In short, to excuse the carrier, the act of God, or res divina must be the sole and immediate cause of the injury. If there be any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God." See, also, Proprietors, etc., v. Wood, 4 Doug., 287; Chicago, etc., R. R. Co. v. Sawyer, 69, Ill., 285; Caldwell v. N. J. Steamboat Co., 47 N. Y., 282; Bulkley v. Naumkeag, etc., Co., 24 How., 386; Hayes v. Kennedy, 41 Pa. St., 378.

The liability in respect to passengers is somewhat different. His undertaking amounts to no more than that so far as human foresight and care can reasonably go, he will transport them safely. He is not liable if injuries happen from sheer accident or misfortune which could not have been prevented by the greatest degree of care, foresight or judgment.

It was not claimed that the accident to McKenney was caused by the act of God, and although there was no evidence to show where the missile came from, it was more rational to suppose that it was carelessly thrown by the fireman on the engine which was opposite the plaintiff at the time he was hit, than that it fell from the clouds or was the result of some natural cause. McKenney was seated in the passenger coach in the seat provided him by the defendant. He had no say as to the mode or manner of running the train. He was as absolutely under control of defendant's servants as if he were a statue, and yet when injured under such circumstances, must he do more than to prove the fact and show the nature and extent of the injury? We think not. We think the learned judge of the Common Pleas was right in saying: "The jury will begin their consideration with the fact established that the injuries were the result of negligence of the defendant."

The traveling public believe that if injured while in the

course of transportation without any fault of their own, the common carrier is liable in damages unless he can show that the accident arose from natural causes or that it could not have been prevented by the exercise of the greatest vigilance, foresight and judgment. We think this is good law and that courts should long hesitate before relaxing the rule in the slightest particular.

The basis of the rule which exempts a common carrier for liability for injury to a human being, under circumstances which would render it liable for injury to a domestic animal or for the destruction of a keg of beer or a barrel of whisky, can hardly be traced to a divine origin. There should be no difference in the rule respecting the obligation of the common carrier, whether the thing carried be freight or passengers, unless it be shown that the passenger injured did something which probably brought about or contributed to the injury.Chicago Law Journal.

A KAFIR LAWSUIT.

The

A Kafir in the witness-box is often a surprise to those who know little or nothing of the traditions of the Kafir race. ease with which the ordinary native parries the most dexterous cross-examination, the skill with which he extricates himself from the consequences of an unfortunate answer, and above all, the ready and staggering plausibility of his explanations, have often struck those who come in contact with him in the law courts. He is far superior, as a rule, to the ordinary European, in the witness-box. Keen-witted and ready, he is yet too cautious ever to answer a question the drift of which he does not clearly foresee, and which when he understands, he at once proceeds, if necessary, to forestall by his reply. As a result, the truth of his evidence can only be sifted by very careful proceeding on the part of the cross-examiner, and by keeping him in the dark as much as possible to the bearing of his answers upon the subject-matter of the suit. Whether this dialectic skill is innate in the Kafir, or whether it is the result of long cultivation, it is difficult to say, but as some proof of the former, we subjoin a very interesting extract from a book now unhappily becoming rare, viz. Colonel Maclean's "Handbook of Kafir Laws and Customs, compiled from Notes by Mr. Brownlee, Rev. Dugmore and Mr. Ayliff," which will, we venture to think, throw a great deal of light upon the present abilities of the descendants of those whose judicial customs fifty years ago, are so graphically described in the following words:

"When a Kafir has ascertained that he has sufficient grounds to enter on an action against another, his first step is to proceed, with a party of his friends or adherents armed, to the residence of the person against whom his action lies. On their arrival they sit down together in some conspicuous position, and await quietly the result of their presence. As a law party is readily known by the aspect and deportment of its constituents, its appearance at any kraal is the signal for the mustering of all the adult male residents that are forthcoming. These accordingly assemble and also sit down together within conversing distance of their generally unwelcome visitors.

"The two parties perhaps survey each other in silence for some time. Tell us the news,' at length exclaims one of the adherents of the defendant. should their patience fail first. Another pause sometimes ensues, during which the party of the plaintiff discuss in an undertone which of their party shall be opening counsel.' This decided, the learned gentleman commences a minute statement of the case, the rest of the party confining themselves to occasional suggestions, which he adopts or rejects at pleasure. Sometimes he is allowed to proceed almost uninterrupted to the close of the statement, the friends of the defendant listening with silent attention, and treasuring up in their memories all the points of importance for a future stage of the proceedings. Generally, however, it receives a thorough sifting from the beginning; every assertion of consequence being made the occasion of a most searching series of cross questions. The case thus fairly opened, which occupies several hours, it probably proceeds no further the first day. The plaintiff and his party are told that the 'men' of the place are from home, that there are none but 'children' present, who are not competent to discuss such importaut matters. They accordingly retire with the tacit understanding that the case is to be resumed next day.

"During the interval the defendant formally makes known to the men of the neighboring kraals, that an action has been entered against him, and they are expected to be present on his behalf at the resumption of the case. In the meantime, the first day's proceedings having indicated the line of argu

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