The phrase res ipsa loquitur does not make for distinctness. Though perhaps not so often misused as res gestee, the maxim that the thing itself speaks has lost its point, and frequently serves to blur the edges of accurate legal definition. As originally used it stated the effect and.legal inference from a bare happening like objects falling into a street. (Mullen v. St. John, 57 N. Y. 567.) But this soon proved of little practical value in the case of a building going up under different contractors. (Wolf v. American Tract Society, 164 N. Y. 30.) So the import of this phrase was enlarged from the bare happening to take in as a proper setting some of the attending circumstances. (Griffen v. Manice, 166 N. Y. 188, 193.) The maxim thus comes to saying that with certain other circumstantial evidence a prima facie liability may arise; or, as we might say, res et cetera loquuntur. A contract duty obviously differs from the case of a pure tort. The apparent failure to carry safely a passenger naturally calls for an explanation. (Stokes v. Saltonstall, 13 Pet. 181; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380.) This distinction is now well recognized. (See Cosulich v. Standard Oil Co., 122 N. Y. 118, 128, by Parker, J.) “ Excepting where contractual relations exist between the parties, as in the case of carriers of passengers and some others, negligence will not be presumed from the mere happening of the accident and a consequent injury.” (Stearns v. Ontario Spinning Co., 184 Penn. St. 519, 523.) The court’s charge rightly used the word “ presumption,” which meant that the street car company which was under the carrier’s duty, was expected through its motorman to furnish an explanation, or at least to go forward with its proofs. This principle applies to a passenger on the running board of a street car. (Bamberg v. International Railway Co., 53 Misc. Rep. 403, 406.) The charge was, therefore, free from ground of exception, and I agree to affirm.