dissenting:
In my judgment the doctrine of res ipsa loquitur applies in this case. As I understand it, there is evidence from which the jury might infer negligence on the part of the defendant, and the case should have gone to the jury.
In Shearman and Redfield on Negligence, vol. 1 (6th Ed.), sec. 59, the doctrine is stated thus:
“When a thing which causes injury is shown to he under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”
See also, 20 Ruling Case Law, 191, par. 158.
The question of whether or not the railroad company in this case has satisfactorily explained the cause of the derailment was for the jury. It was certainly not a question of law.
Under the doctrine of res ipsa loquitur an inference or presumption exists which is sufficient to take the question of the negligence of the defendant to the jury. It requires the defendant to explain the accident consistently with the conclusion of due care on his part; and whether he *424succeeds in doing so is necessarily a question of fact for the jury. The judge cannot decide that he has done so without trying a question of fact, passing upon the credibility of witnesses, and deciding that an affirmative proposition of fact' has been proven. This cannot he done in jurisdictions where the system of trial by jury is correctly maintained. See in this connection 3 Thomp. Neg., sec. 2773, page 238.
The evidence in this case does not clearly establish the cause of the derailment. The railroad company offered evidence tending to show proper inspection and also tending to show a latent defect. It was a question for the jury as to how much testimony was necessary to overcome the presumption of negligence.
In the opinion of the majority, the evidence in the case is viewed and considered just as if there had been a verdict and judgment for the defendant. The plaintiff is not given the benefit of any reasonable inferences that flow from the evidence to which he is entitled, but on the other hand the evidence for the railway company is emphasized and accepted, and held sufficient as a matter of law, to overthrow the plaintiff’s verdict.
When the doctrine of res ipsa loquitur is invoked in favor of the plaintiff and he is given the just benefit of the evidence favorable to him arid the reasonable inferences to be drawn therefrom, I think the judgment and verdict are amply supported, and they should be affirmed.