On Petition for Rehearing.
Hackney, J.In the appellant’s petition for a rehearing counsel insist that the instruction given by the trial court, as copied in the original opinion, erroneously advised the jury that it was proper to consider the fact of the explosion, with the other facts proven, in determining whether the locomotive was defective.
To this objection counsel cite authorities holding, correctly, we think, that the mere fact of an explosion should not be considered in determining the existence of negligence. Young v. Bransford, 12 Lea (Tenn.) 232; Losee v. Buchanan, 51 N. Y. 476; Marshall v. Welwood, 38 N. J. Law, 399; 7 Am. and Eng. Ency. of Law, p. 522; 2 Thompson on Neg. 1227. To these may be added Black on Proof and Pl., p. 23; Elliott on Railroads, 1299; John Morris Co. v. Southworth, 154 Ill. 118, 39 N. E. 1099; Racine v. New York, etc., R. R. Co., 70 Hun. 453.
It is apparent that this holding rests upon the rule that the plaintiff assumes the burden of proving the defendant’s negligence, and that since undiscoverable defects might cause explosion without negligence, it would reverse the burden of proof to hold the fact of explosion evidence of negligence, and would require of the defendant proof of freedom from negligence. But, does this doctrine apply to the question in hand? The fact of an explosion admits of but two inferences, negligence in overstraining a boiler free from defects, or the existence of defects which would deny the proper use. of the boiler if it were free from defects. The first inference, as held in the original opinion and not *176now controverted, was not drawn by the jury, and is not within the present objection to the charge. The second inference we believe to have been proper, since it did not and should not be permitted to support the further inference of negligence.
We are not advised of any reason for excluding this inference, and it is certain that its acceptance does not violate the rule of proof as to negligence.
In a case where general instructions were given it would be proper for the court, in charging with reference to the fact of the explosion, tq carefully exclude a consideration of such fact in determining the existence of negligence primarily, or as an inference upon the inference of an existing defect. In this case, however, there is no such question.
The petition is overruled.