If we assume that the plaintiff was a passenger, and might have rested his case by showing that the car in which he was riding was derailed, thus making out a prima facie case, he did not choose to do so, but went on and showed by his own witnesses just how the accident happened. Unless, therefore, the evidence put in by him tended to show negligence on the part of the defendant, he was not entitled to go to the jury. Winship v. New York, New Raven, & Hartford Railroad, 170 Mass. 464.
The declaration alleges that the derailment of the train was caused by reason of the defective condition of the roadbed, tracks, switches, switching appliances, signals, signal connections, and ways and works of the defendant, and that the defective condition was caused by the negligence of the defendant.
An examination of the evidence fails to show any evidence of negligence on the part of the defendant. The accident was *5caused by the breaking of a pin in a pipe, whereby a rod within the pipe, which moved a pair of frogs connected with the track upon which the train ran, was drawn apart, and so, although the proper motions were gone through with in the tower, the switch did not turn. The appliance which parted was one in universal use upon railroads throughout the country, and was the best known at the time. It was put in by the Union Switch and Signal Company, a company of high standing, which supplies goods to all railroads. Three experts for the plaintiff, of great experience, testified that there was no precedent for such an accident. The accident occurred soon after five o’clock in the morning, and the apparatus had worked all right two hours and twenty-five minutes before the accident. The evidence showed that the system of interlocking switches was carefully inspected about once a week, and it is difficult to see what more the defendant could have done. There was other evidence put in by the plaintiff which showed that there was no defect in any of the other particulars set forth in the declaration.
A carrier of passengers, while bound to use the utmost care consistent with the nature and extent of its business, is not responsible for hidden defects, which could not have been discovered by the most careful inspection. Ingalls v. Bills, 9 Met. 1. Ladd v. New Bedford Railroad, 119 Mass. 412. Readhead v. Midland Railway, L. R. 2 Q. B. 412, and L. R. 4 Q. B. 379.
A majority of the court is therefore of opinion that the first, third and fourth requests for instructions should have been given.
Exceptions sustained.