On Rehearing.
[En Banc. Decided October 30, 1909.]
Crow, J.Upon appellant’s petition for a rehearing, this cause has been again presented to this court, sitting en banc, but after further consideration we have concluded to adhere to our former opinion.
Appellant’s controlling contention, again urged on the rehearing, is that she is entitled to successfully invoke the rule of res ipsa loquitur, by reason of the single established fact that, without fault of her own, she was injured while traveling on respondent’s car. In other words, she insists that the mere happening of an accident causing injury to a passenger, *594without fault on his part, necessarily gives rise to such a presumption of negligence of the carrier as to make a prima facie case, and entitle the passenger to a recovery of damages' for the injuries sustained. We regard this as being too broad a statement of the doctrine. The phrase res ipsa loquitur, as applied to negligence cases, is used to give expression to the idea that, when an accident is shown to be of such a character as, in the light of ordinary experience, is inexplicable except as the result of negligence, then negligence will be presumed. The accidents in Firebaugh v. Seattle Elec. Co., 40 Wash. 658, 82 Pac. 995, 111 Am. St. 990, 2 L. R. A. (N. S.) 836; Williams v. Spohane Falls & Northern R. Co., 39 Wash. 77, 80 Pac. 1100, and Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325,16 L. R. A. (N. S.) 931, were of such a character as, in the light of ordinary experience, were explainable from the standpoint of the plaintiff by the presumption of negligence only. Each and all of them were unusual, not to be ordinarily anticipated, and inconsistent with the idea of careful operation. No such showing is made in this case, the undisputed evidence being that jerks of a cable car are of ordinary occurrence, consistent with careful operation, and that they frequently happen without any act of negligence upon the part of the carrier.
In Yazoo & M. V. R. Co. v. Humphrey, 83 Miss. 721, 741, 36 South. 154, the court, discussing the doctrine of res ipsa loquitur, said:
“There is a large and well defined class of cases in which for injuries to passengers the negligence of the carrier is implied from the mere happening of the accident. In such cases proof of injury to the passenger joined to proof of the accident makes out against the carrier a prima facie case of failure to observe that high degree of care required of it under the law, and, if not rebutted, entitles the plaintiff to recover. This rule applies when a passenger train strikes an animal on the track and a passenger is thereby injured, or when the injury results from a collision between two trains on the same track, and other similar instances. . . . But this rule does not apply to all cases of injuries to passengers, *595but only to such as are caused by happenings not ordinarily incident to the prosecution of the carrier’s business in the customary manner, or by such accidents as do not usually occur without negligence on the part of the carrier.”
See, also, Hoffman v. Third Avenue R. Co., 45 App. Div. 586, 61 N. Y. Supp. 590.
In Merrill v. Metropolitan St. R. Co., 73 App. Div. 401, 77 N. Y. Supp. 122, an injury was sustained by the plaintiff while a passenger on the defendant’s street car, in consequence of the fact that another passenger, in the act of entering the car from the platform, was thrown against her by a violent jerk or jolt of the car. Yet the court held that, in the absence of any further evidence of negligence of the defendant, the plaintiff would not be entitled to recover.
If a passenger on a railway train or street car should be injured as the result of a derailment, a head-on collision, or some similar accident, a different state of facts would be presented, and the doctrine of res ipsa loquitur would undoubtedly apply, the occurrence being such an unusual one, and of such a character as to be explained only on the theory of some act of negligence on the part of the carrier or its servants, unknown to the passenger. The undisputed evidence in this case being that jerks upon a cable car are of ordinary occurrence, unavoidable, and consistent with careful operation, and no additional evidence to show negligence being presented, the judgment must be affirmed. It is so ordered.
Mount, Parker, Morris, and Gose, JJ., concur.