I concur in the judgment of affirmance.
1. I concur in all that is said in the first point discussed in the opinion of Mr. Justice Thornton.
2. I think, also, that the court below did not err in striking the words “and to a moral certainty” out of the instruction asked by defendants. The words “moral *603certainty,” as found in section 1826 of the Code of Civil Procedure, are certainly somewhat confusing, considering their celebrated use by Chief Justice Shaw in the Webster case as part of the definition of belief beyond “ a reasonable doubt.” It is evident, however, that the words were not used in the latter sense in the section referred to,, else the well-recognized distinction between the amount of evidence required for conviction in a criminal case and the amount sufficient to determine an issue in a civil action would be entirely obliterated. The legislature must be held as stating, or trying to state, in section 1826, the general difference between a mathematical, or strictly scientific, demonstration, and the kind of proof usually obtainable in judicial trials. They did not intend to use the words in that relation as synonymous with proof beyond a reasonable doubt. And this is apparent from section 2061, which provides that the court, on proper occasions, must instruct the jury, among other things, “that in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the preponderance of evidence; that in criminal cases guilt must be established beyond reasonable doubt.” It was sufficient, therefore, in the case at bar, for the court to tell the jury that plaintiff must prove his case “by a preponderance of evidence.” To have added “ and to a moral certainty ” would have tended to confuse and mislead the jury.
But I do not entirely agree with the other reasons which Mr. Justice Thornton gives for sustaining the action of the court on this instruction. I think he states the doctrine too broadly, that the mere happening of an accident, of itself, proves the negligence of the carrier. Of course, in many instances, the nature of the accident, and the circumstances under which it occurred, will, if unexplained, make a prima facie case of negligence; but I do not take it to be established as a *604rule of law that any accident by which a passenger is injured will have that effect. In Boyce v. California Stage Co., 25 Cal. 468-470, there are some expressions (in the opinion of the court) which tend toward such an extreme doctrine; but they were not necessary to the decision of the case. In that case the circumstances showed extreme carelessness on the part of the driver of the coach. The court say: “At the point where the overturning occurred the road formed the arc of a circle. Instead of moving on the arc the team took the chord, and went so near the precipice as to allow the wheels to run over. .... One cannot read the evidence in connection with the diagram contained in the record without coming to the conclusion that the overturningwhich caused nearly fatal injuries to the plaintiff, and death to some of the other passengers, was the result of careless inattention on the part of the coachman in not keeping his team in the road.....It is most probable, from the evidence, that his inattention was the result of drowsiness, induced by the hour and the use of too much liquor.” But if, in such a case, the plaintiff should merely show that while a coach was going at a moderate gait along the middle of a good, wide, and commonly traveled road, it was suddenly overturned without any apparent cause, would those facts alone make out a case of negligence (which is always the gist of such an action) against the defendant?
3. I concur in the doctrine that the responsibility of a common carrier of passengers attaches to one who controls and runs an elevator used as appellants used the elevator by which respondent was injured.
I also concur in the conclusion that the court below did not err in giving the first instruction asked by plaintiff, or in adding to the ninth instruction asked by defendants the words “according to the best known tests reasonably practicable but I think that some of the cases cited by Mr. Justice Thornton, with apparent ap*605proval, in his discussion of those instructions, carry the rule concerning the application of tests beyond its legitimate reach.
On all other points I concur in the opinion of Mr. Justice Thornton.
Rehearing denied.