A majority of the Court think that the non-suit should not be granted.
*372Lore, C. J.,charging the jury:
Gentlemen of the jury:—This is an action brought by J. R. and W. R. Wood against the Wilmington City Railway Company, to recover damages for injuries done to the horse of the plaintiffs on Eighth Street in this city, between French and King Streets, on the 16th day of June, 1903.
The allegation is that one of the plaintiffs was driving westwardly on Eighth Street and that his horse, stepping upon one of the rails of the company, received an electric shock from which he was injured, and because of that injury was shot. The plaintiffs claim that the electric current so put through their horse came from the rails of the company, and by reason of the negligence or want of care on the part of the defendant company.
This action is based upon the negligence of the defendant; and in order to recover,- it is incumbent upon the plaintiffs to show to your satisfaction, by a preponderence of the proof, three things ;
1. That the injury to the horse was by an electric current as is alleged in the declaration;
2. That the electric current came from the railway track of the defendant company; (3) that the current so came by reason of the fault or negligence of the said defendant.
Kegligence is never presumed; it must be proved. The plaintiffs, however, in this case claim the benefit of the doctrine of res ipso loquitor; that is, that the accident itself, with all its surroundings, speaks in such way and is of such a character as to show negligence on the part of the defendant company. And that imposes upon it the burden of rebutting such negligence by proof.
This may be one mode of showing that there is proof of negligence, and if negligence is shown, then that negligence must be met, or the plaintiffs are entitled to recover.
In this case it is admitted that the defendant company was operating a railway by electricity at the time and at the place of the accident. Electricity is known to be a very dangerous element and in its use in the streets of the city by an electric railway company *373there is imposed upon the person using it the duty of due care and caution for the prevention of accident and for the protection of persons using such streets or highways; and such care must always be in proportion to the danger of the surroundings and to the character of the appliances used for electric purposes. If such due care is used and still accidents happen, there will be no liability, because there exists no negligence. The necessity for the use of electricity as a motive power in this day, for the public accommodation, is a matter of common knowledge and recognition. It is authorized by law, but in its use there must be the exercise of due care.
Whether there be evidence of negligence in an accident must be determined by the facts of each particular case. Where an electric railway is under the control and management of a company, and the accident is of such a character as to show that it could not have happened in the ordinary course of events under reasonably careful management, it affords some evidence, in the absense of any explanation, that the accident arose from the want of care, but if it is satisfactorily shown that the defect which it is claimed caused the accident did not exist at the time of the accident, negligence would be rebutted.
If you believe from the evidence that the horse of the plaintiffs was injured by an electric shock received from the railway track of the defendant company and that the injury would not have happened if the defendant company had exercised all the care and precaution which it should have exercised under the circumstances, then your verdict should be for the plaintiffs, and for such sum as would reasonably compensate them for their loss. If the injury to the horse arose from any other cause than the electric shock, or if such electric shock came from some other source than the track of the electric company, the plaintiffs cannot recover; and even if the current came from the railway of the defendant company, yet the company could not have known of that defect in the exercise of reasonable and proper care under the circumstances, then in that event your verdict should be for the defendant.
Verdict for the plaintiffs for $150.