dissenting. The appellant concedes that unless the evidence by him introduced, with all the inferences which a jury could justifiably draw from it, would support a verdict in his favor, the action of the court was not erroneous. The cases supporting that view of the law are cited by court and counsel in C. & N. W. R. R. Co. v. Snyder, 128 Ill. 655. The question upon this record is as to what inference a jury could justifiably draw from the evidence.
Whether, if in fact the brake which gave way was defective, the appellees exercised reasonable care when sending the appellant to work upon the car, in assuming, without any inspection, that a car sent by a railway company to their quarry for use, was jn a safe condition, was a question of fact for a jury. Pa. Co. v. Frana, 112 Ill. 398. Now, the mere fact that the brake gave way while being used as it was constructed to be used, was of itself prima facie evidence that it was defective. Kearney v. London, etc., 5 L. R. Q. B. 411, and 6 L. R. Q. B. 759. There a brick fell off a wall and injured the plaintiff, which was held to afford, prima facie, a presumption that the proprietors of the wall had not used reasonable care. So the fall of a building, no tempest prevailing, and there being no external violence, is without explanation, evidence of negligence of the owner. Mullen v. St.John, 57 N. Y. 567. “ Buildings properly constructed do not fall without adequate cause.” The same principle is applied where a locomotive boiler exploded in I. C. R. R. Co. v. Phillips, 49 Ill. 234; S. C., 55 Ill. 194.
But it is supposed that as the particular defect in the brake which caused it to give way is not shown by the evidence in this case, it can not be presumed, and the jury would not be at liberty to infer that it was such a defect that it might, by the use of ordinary means and ordinary care, have been ascertained; and therefore omitting to inspect the brake, when perhaps nothing would have been discovered by an inspection, is not evidence of any negligence, as a consequence of which the appellee was injured; and DeGraff v. N. Y. C. & H. R. R. Co., 76 N. Y. 125, is cited. That case does not go that length. The plaintiff was a brakeman on a freight train from West Albany to Syracuse. The railroad had six men employed at West Albany to inspect freight trains, who were in the habit of examining the brakes. The brake had been successfully used three times on the same trip, and the chain broke at the fourth attempt to use it. From evidence of what a good chain ought to bear, and the fact that it broke, it was conceded that the jury might find that it was defective, but says Judge Church: “I have been unable to find any evidence that this chain was not perfect when it was put in, nor that proper care was not exercised in examination by the servants of the company, nor what was the cause of its failure, or whether such cause could have been discovered by the usual and ordinary means. I think the evidence is not sufficient to charge the defendant with a knowledge of such weakness, or any negligence or omission to examine.”
How the case shows that the railroad had in its service men, whose duty it was to examine; if they neglected their duty, it was, under the law of Hew York, neglect of fellow-servants, not chargeable by the servants injured upon the master; and the probability' that the defect was discoverable was greatly lessened by the fact that the brake did not give way, as in this case, at the first attempt to use it, but after being three times successfully used on that trip.
In the case of the fallen building in 57 N. Y., without evidence of any specific defect in it, the court say: “The mind necessarily seeks for a cause for the fall. That is, apparently, the bad condition of the structure. This again leads to the inference of negligence which the defendant should rebut.” The proof of negligence “ may in such cases as the present be by presumption.”
In the present case it is a fair presumption that inspection by a careful and competent man would have discovered the defect which caused the brake to fail. All inspections are based upon experience, that in the ordinary course of things defects, if they exist, are thereby discovered. The contrary hypothesis makes the use of machinery a matter merely of luck and chance. In effect it substitutes the fatalism of the Turk for the precaution of Christian nations.
Verdicts of juries are properly based upon probabilities; certainty in a great proportion of human affairs is not attainable. A bare preponderance of evidence in favor of the necessary hypothesis is sufficient to warrant a verdict: Miller v. Balthasser, 78 Ill. 302; and as the last quotation says evidence may be “ by presumption,” I therefore think the court erred in taking the case from the jury.