The plaintiff and his family, while riding in an omnibus belonging to the defendants, were injured by the explosion of a camphene lamp in the stage. The dresses of the females of the plaintiff’s family were damaged, and injuries were sustained by him personally, for which the court below gave judgment for $100. The defendants appealed from the judgment below.
The first five grounds stated in the notice of appeal might all have been included in one objection, viz. that in such an action the plaintiff, before he could recover, was bound to show affirmatively that the defendants were guilty of negligence or used improper articles in their lamps.
Upon the trial, it appeared that the injury was occasioned by the explosion of a camphene lamp in the stage, and that the lamp was in good order, and suited to the purpose for which it was intended; but no evidence was offered to show the qualities of camphene, or whether it was or not a dangerous article for such a purpose.
The liability of carriers of passengers as distinguished from that of carriers of goods is less extensive. While the carrier of goods is liable for all losses which arise from every cause except the act of God and public enemies, the carrier of passengers is only liable for a neglect to exercise reasonable care, precaution, and foresight; and when it is made to appear that a passenger is injured from a cause other than these the carrier is not responsible. So far as human foresight and care would protect the passenger, to that extent the carrier is called upon to *333afford that protection. (Camden and Amboy Railroad Company v. Burke, 13 Wend. 611.) The appellants’ counsel is undoubtedly correct in the rule as stated by him on this point. But I think he errs in supposing that the burden of proof in such a case rests upon the plaintiff. When he has proven the relation of the defendants to the plaintiff to be that of carriers of travellers, and that the injury was produced by an occurrence during the transportation of the plaintiff and his family within the control of the carriers, a case of presumptive negligence is established which entitles the plaintiff to recover, unless the defendants show that the accident was without any fault or negligence on their part. The rule appears to be well settled that the onus to prove such want of negligence rests on the defendants. (Angell on Carriers, 569; 5 Ad. and Ell. N. S. 747; 13 Peters, 181; 2 Camp. 79; Holbrook v. Utica and Schenectady Railroad Company, 16 Barb. S. C. R. p. 113.) The justice had no right to base his decision upon any dangerous qualities in camphene within his knowledge unless such danger was shown by testimony, but he had a right to presume that there was negligence on the part of the defendants which produced the injury, until they had produced evidence to satisfy him that they were free from faults.
This they in part attempted to do upon the trial. They proved by witnesses that the lamp was good and substantial, and of the usual kind used in stages; that the stage was driven slowly, and that the lamp had been properly trimmed that day. So far as this evidence applied to the condition of the lamp it was sufficient, but no evidence was offered to show that the article used was not dangerous or was proper to be used for such purposes. The absence of such proof justified the court in giving judgment for the plaintiff. The defence necessary to be made out was, that the explosion of the lamp by which the injury was produced could not have been prevented by the exercise of a proper degree of human prudence and foresight; and although the evidence showed that the lamp was in good order, still there was a defect in the proof of the defendant in not also showing that the *334article used in the lamp was not calculated to produce such explosions.
The difference between this case and that of Ingalls v. Bills, 9 Met. p. 1, is, that in the latter case proof was given that established the defence, by showing the cause of injury to have been hidden, and one which could not have been guarded against by the exercise of sound judgment and a vigilant oversight. (Story on Bailments, § 601, a.)
An objection is taken in the notice of appeal to the amount of the recovery, but it has not been urged upon the argument. The damage proven to the property used by the wife and children was $63. The evidence shows some injury to the plaintiff’s person. The complaint claims damage for injury to both, and we cannot therefore interfere with the finding of the justice in this respect.
The judgment .was properly rendered against the defendants; and although the amount is more than we might have awarded, yet as part of the damages are for injury' to the plaintiff’s person, which are uncertain in amount, this court on appeal cannot disturb it.
Judgment affirmed.