Opinion by
Mb. Justice Dean,Mary C. Madara took passage for herself and five children on defendant’s car at Shamokin for Green Ridge, about six miles distant, on the morning of June 30, 1895, and were carried safely to their destination. At 6 o’clock in the evening they took the same car line to return, Nicholas Madara, the husband, being then with his family. The car, on an up grade at Green Ridge, from some defect in machinery or power, stopped and could not be moved. One William Yisick was there at the time assisting to get the car started, and giving directions as one having authority; not succeeding, he said to the motorman, that he would go to the car barn a short distance off and get another car, into which the passengers could be transferred and carried to their destination. He soon returned with another car, approaching the disabled and standing one on a steep down grade. From some cause the car he was on became unmanageable, ran into the disabled one standing on the track, and seriously injured Mary C. Madara, the plaintiff. The husband and wife brought *546this suit in the names of both, each averring special damage sustained, as alleged, by negligence of defendant; the statement filed, as amended, is in substantial accord with the provisions of the act of May, 1895.
When the case came to trial in the court below the defense set up was, that Visick, who brought the second car, was a mere intermeddler, and acted without any authority from the railroad company. The defendant offered no evidence to establish this fact, but relied on that of plaintiff to make it out. It was conceded, that Visick was an employee of the company, though not a conductor or motorman, but in just what capacity, was not clear. Nicholas Madara testified positively, that he heard Visick say to the motorman he would go for the car, and the motorman assented, while the latter remained in charge of the disabled car then standing on a steep down grade. The court below, in a charge quite as favorable to defendant as it had a right to ask, submitted to the jury to find whether, in the exigency, Visick acted by the authority or instructions of the motorman in bringing up the relieving car, instructing them, if they did so find, then he was for the time being an employee of defendant; if, on the other hand, he acted of his own motion, then he was a mere stranger, and the railway company was not answerable for his negligence. There was a verdict and judgment for plaintiffs, and we have tins appeal by defendant, assigning for error the instructions of the court as already noticed. It is argued that there was no sufficient evidence of any authority in Visick to act for the company, because there was no authority vested in the motorman to direct him to procure another car, and that, even if the motorman had such authority, the evidence wholly failed to show that he exercised it. There was evidence showing that Visick sanded the rails when they were attempting to move the disabled car; that he gave instructions to the motorman how to manipulate the machinery to start it; when all their efforts proved futile, then Visick told the motorman he would procure another car and the motorman assented. Under any view of this testimony, the court could not properly take the case from the jury. The disabled car was on a steep grade, a point full of peril to the passengers; surely, duty required the motorman, familiar with the machinery of the car, to remain at his post for their protection; nor could they stay in that *547position indefinitely ; humanity, as well as safety, dictated that immediate efforts for the relief of helpless women and children should be made; whether the motorman did that which was most prudent under the circumstances, was for the jury to say.
But aside from this point, which the jury has determined in favor of plaintiff, she was a passenger on defendant’s car, and by their contract they owed to her the utmost degree of care; being injured by one of the carrier’s cars while occupying that relation, the presumption is, that it was through the negligence of the carrier. The burden is on it to rebut the presumption by showing that Visick was a mere intruder upon the relieving car, acting wholly without authority. The burden is not upon the passenger to prove that one apparently in authority, having access to the car barn, and the power to assume control of a car and run it on the road to the relief of the stalled car, was a servant of the company. If the accident had been apparently caused by the act of a stranger while the plaintiff was a passenger, as in Railway Co. v. Gibson, 96 Pa. 83, a collision with a hay wagon, the burden would have been on her to show negligence on part of defendant. But when it arose from a collision between defendant’s ears, operated on its own rails, the presumption of negligence arises and the burden is on defendant to rebut it.
There is nothing of merit in appellant’s objection to the form of action; as before noticed, by the amendment to the statement, it was brought within the provisions of the act of 1895; the defendant pleaded the general issue. It is possible, if this purely technical objection had been raised by demurrer, it would have received fuller notice, but as the record stands it is without merit.
All the assignments of error are overruled and the judgment is affirmed.