I concur with Mr. Justice O’Bbies" in the affirmance of this judgment. The plaintiff, while a passenger in one of the defendant’s cars, was injured by reason of a collision between the car in which she was riding and another car of the defendant. This is clearly an action in which a situation is shown which could not have been produced except by the operation of abnormal causes. “ The onus then rests upon the defendant to prove that the injury was caused without his fault.” (Seybolt v. The N. Y., L. E. & W. R. R. Co., 95 N. Y. 568.) Here the evidence raised a presumption of negligence against the defendant; and the only question relating thereto which remained for the jury to consider, was whether this pi’esumption had been sufficiently negatived by the evidence introduced by the defendant. Keeping in mind the presumption which arose from the nature of the accident, I think the charge, as a whole, clearly presented to the jury the question that they were to determine. The duty of the defendant was to operate its road so as safely to carry their passengers. This duty consisted not only in properly managing the car upon which the plaintiff was a passenger, but also in keeping the track in front of the car clear so that no collision would occur. If the defendant negligently allowed one of its other cars to remain upon the track, which rendered a collision with the car in which the plaintiff was a passenger, when properly managed, unavoidable, the negligence necessary to maintain the action is established and the finding of the jury justified; and any request to charge which eliminated this consideration from the minds of the jury was properly refused. Thus, the thirteenth request to charge, which, in effect, told the jury that unless there was some negligence on the part of the defendant, either in the management of its car in which the plaintiff was riding, or in the effort exercised on the part of the defendant by sanding its tracks in the manner described, to avoid the danger of such an accident, the plaintiff could not recover and the defendant was entitled to a verdict, was properly refused. The fourteenth request to charge presented properly to the jury the question that they were to determine, for there the jury were instructed that unless they were able to find, from all the evidence in the case, that something was done by the defendant which ought not to have been done, or that the defendant omitted to do some*472thing which it ought to have done to have prevented the accident, the plaintiff was not entitled to recover. The court said: “The law imposes upon the defendant, where an accident happens under the circumstances disclosed by the testimony in this case, the burden of showing to the jury such facts as warrant the jury in concluding that the defendant corporation exercised due care in the construction of its road, in the management of its cars and horses, to prevent accidents.” It will be noticed that the court did not instruct the jury that the burden of proof was upon the defendant, a statement that has been properly criticised, as the burden of proof always rests upon the party having the affirmative; but the clear meaning of this instruction was that when the facts show that an accident has occurred which under ordinary circumstances could not have been caused except by some failure of the defendant to exercise the care required of it as a common carrier of passengers, to avoid liability the defendant is bound to show that some abnormal cause, a cause which the exercise of care on the part of the defendant under the particular circumstances existing, could not have been anticipated and guarded against, was the cause of the accident, or in other words, as was said in the Seybolt case, “ the onus then rests upon the defendant to prove that the injury was caused without his fault.” But if the jury could have gathered from the language used by the court that any greater burden was placed upon the defendant than is here stated, the requests presented by the defendant, and which were charged by the court, made the meaning of the court entirely clear ; for again and again the court charged the jury that the burden of proof in the action rested on the plaintiff, and that the plaintiff was bound to prove by a preponderance of' evidence the existence of negligence on the part of the defendant and that such negligence was the proximate cause of her injury; and the jury were told that if they believed the evidence to be equally consistent with the existence or absence of negligence on the part of the defendant, then the burden of proof which the law imposes on the plaintiff had not been sustained and the jury must find a verdict in favor of the defendant. The court thus correctly charged the jury that the burden of proof rested upon the plaintiff, but that the circumstances of the accident were sufficient to create a presumption of negligence, and that being so, it was for the jury to say whether the evidence of the defendant had rebutted that presumption; in *473other words, whether the defendant had shown to the jury that the accident had happened notwithstanding the exercise by it of care and prudence. The accident was caused by a collision between two of the defendant’s cars. That collision, without the operation of some extraneous cause, could have resulted only from some neglect of the defendant properly to manage its cars or maintain its road. If such extraneous cause or abnormal situation existed, the defendant was bound to show it so as to rebut the presumption which arose from the accident itself. Whether that was called a burden or an onus which rested upon the defendant, it correctly stated the principle that was to control the jury in considering the testimony. It was not that the burden of proving the plaintiff’s cause of action had shifted, hut that a situation had been disclosed by the evidence which raised a presumption of fact that the jury were to face and consider whether the explanation offered by the defendant of the accident was sufficient to show that the collision was caused by an act which would not have been prevented by the exercise of due care on the part of the defendant. And, then, taking the presumption that arose from the facts of the collision itself, and the evidence in the case as to the cause of the injury, the jury were to say whether the burden of proof upon the plaintiff was sustained, and they could find affirmatively that the accident was the result of the negligence of the defendant. This, I think, was clearly presented to the jury, taking the charge together with the defendant’s requests which were charged by the court, and the jury could not have been misled into understanding the court to say that the burden of disproving the plaintiff’s cause of action was upon the defendant.
I think that no error was committed which requires a reversal of the judgment.