1. The defendant excepted to the refusal of the court “ to rule that, upon all the evidence in the case, the defendant had proved that there was no negligence on its part, and had thus overcome the effect of the evidence of the mere running off of the track by the car, introduced by the plaintiff,” and “to direct a verdict for the defendant.” The refusal was right. There was evidence that the car had run off' the track about an hour before the accident, and that immediately before the accident it was running at the rate of fifteen or twenty miles an hour down a grade and around a curve, when it again ran off the track and caused the plaintiff’s injury.
2. The next exception was to the instruction in regard to the evidence of negligence. The substance of the instruction was that, from the occurrence of the accident under the circumstances testified to by the plaintiff and his brother, in the absence of any other adequate explanation, they might infer negligence of the defendant. The judge read to the jury a part of the opinion in Feital v. Middlesex Railroad, 109 Mass. 398, including the statement that “ There are cases where proof of the occurrence of the accident, and of the exercise of due care *38on the part of the plaintiff, is prima facie proof of the defendant’s negligence.” The instructions were clear and correct. The portion of the opinion which was read was well adapted to the case. The expression in regard to prima facie proof was accompanied with such explanation and additional statement, both in the opinion and in other parts of the charge, that the jury were in no danger of being misled. White v. Boston & Albany Railroad, 144 Mass. 404. Stevens v. European & North American Railway, 66 Maine, 74. Breen v. New York Central & Hudson River Railroad, 109 N. Y. 297. Dampman v. Pennsylvania Railroad, 166 Penn. St. 520. Ohio & Mississippi Railway v. Voight, 122 Ind. 288.
3. The third of the exceptions to the instructions was followed by an explanation which took away all ground of objection to the language used. Indeed, it had been preceded by such other instructions in the original charge, that the jury could hardly have misunderstood the meaning of the judge if there had been no subsequent explanation.
4. The instructions in regard to absent witnesses were correct and sufficient.
5. In charging the jury in regard to some of the witnesses who had testified at the former trial of the case, the judge gave proper instructions. He was evidently referring to witnesses as such, and the exception taken gave him no intimation that the defendant understood his language to refer to the plaintiff as a party. It is now argued that what the plaintiff had previously testified might be evidence against him in the nature of an admission. If the attention of the judge had been directed to his testimony, the jury undoubtedly would have been instructed to that effect, if there was anything in his testimony to which such an instruction could apply. That this rule of law was in the mind of the judge is apparent from another part of the charge.
6. So far as appears, the motion to dismiss was rightly overruled. We cannot know, as matter of law, that the assistant treasurer was not an officer having charge of the defendant’s business, within the meaning of the Pub. Sts. c. 161, § 36. The deputy sheriff returned a service upon the corporation by serving on that officer, and no plea in abatement was filed.
We discover no error of law in the proceedings.
Exceptions overruled.