I concur in the judgment of reversal upon the first point discussed in the opinion of Mr. Justice Garoutte. I also concur in holding that the court properly refused a nonsuit. But I do not concur in that portion of the opinion which holds that the liability of the defendant is to be determined by the same rules which determine the liability of common carriers of passengers. Their relation to a passenger is such that, upon the proof of an injury sustained by him while being carried, negligence Is presumed, and the burden of exonerating itself from liability is thrown upon the carrier: Bush v. Barnett, 96 Cal. 202, 31 Pac. 2. In the present case, however, there was no contractual relation between the plaintiff and the defendant, and as the liability of the defendant is predicated solely upon his negligence, it was essential for the plaintiff to present some evidence tending to establish such negligence before she was entitled to recover: Wharton on Negligence, sec. 421. “It is believed that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to evidence of negligence on the part of the defendant”: Thompson on Negligence, p. 1227. See, also, Cosulich v. Oil Co., 122 N. Y. 123, 19 Am. St. Rep. 475, 25 N. E. 259; Huff v. Austin, 46 Ohio St. 386, 15 Am. St. Rep. 613, 21 N. E. 864.
When the plaintiff rested her case she had, however, presented sufficient evidence to establish a prima facie case of negligence on the part of the defendant. She was, at the time of receiving the injury, traveling upon the public highway— a place in which she had the right to be—and the defendant was engaged in the lawful occupation of constructing a building fronting upon the street. While thus engaged, he was compelled, more or less, to obstruct the free use of the street; but as this obstruction was for his own convenience, and was an interference with the rights of others, it imposed upon him the duty of exercising such care and caution in the performance of his work as would not interfere with the safety of those who had the right to use the street; and any omission *740on his part to observe this duty was such negligence as would render him liable for any injury resulting therefrom. Inasmuch, therefore, as there was evidence presented by the plaintiff tending to show that the accident to her was caused by the falling of a chisel from the scaffolding of the building, and that the chisel was that of one of the employees of the defendant, who had the control of the construction of the building, there were circumstances before the court which would authorize an inference of negligence on the part of the defendant, and which threw upon him the burden of disproving the same (Shearman and Redfield on Negligence, sec. 58); and the court was not authorized to withdraw the determination of this question from the jury.