On Petition for Rehearing.
Montgomery, J.4. Appellant’s counsel have filed an earnest petition for a rehearing in this ease, and in support thereof have vigorously reargued many of the questions originally presented. It is very properly conceded that the decision announced and the merits of the case center around the eighth instruction given by'ttie trial court, which explained the application of the doctrine res ipsa loquitur to appellee’s view of the facts established. That part of the instruction now under consideration reads as follows: “Where a passenger, while on the company’s train, received an injury on account of the derailment of the train, the breaking down of the roadbed, or on account of the weak, broken or defective condition of the car provided by the company, or on account of the weak, broken or defective condition of any part of such car, or any of the equipments or other appliances connected therewith, owned or controlled by such company, and used by it in the operation of its road, the mere happening of such accident and injury of the passenger is, at least, prima facie evidence of the negligence of the company, and it will be incumbent upon the company to produce evidence which will excuse the prima facie failure of duty on its part. ’ ’ It will be observed that by this instruction the court did not advise the jury that the mere happening of an accident to a passenger upon a railway train created a presumption of negligence on the *218part of the carrier; but the statement, in substance, is that if a passenger receives an injury on account of the weak, broken and defective condition of any appliance connected with a car owned, controlled and used by the carrier, and in which such passenger is being transported, the happening of the accident is prima facie evidence of the negligence of the company. The maintenance of the defective window latch, to which appellee’s injury was attributed, was undeniably within the exclusive control and supervision of appellant. If it was in fact weak, broken or defective as alleged, and for that reason the window fell and_ inflicted the injury for which this action was brought, as stated in the instruction, then there can be no serious dispute that a prima facie case of negligence was established. The instruction was therefore not erroneous in form and substance.
The instruction was applicable to appellee’s theory of the ease and view of the evidence. The evidence óf- appellee with respect to hoisting the window was in part as follows: “Q. How high did you push the window? A. As high as it would go. Q. How do you know? A. Because I know I did. I was watching the window and saw it catch. Q. Tell the jury how high you raised it. A. I raised the window as high as I could, until it caught. Q. Did you raise it the full length of the window ? A. I did. Q. Until the lower part of the window was level with the lower part of the upper sash? A. Yes, sir. Q. You observed that, did you? A. Yes, sir. Q. Did you hear any clicking noise? A. I felt it catch. Q. When you raised the sash up, do you tell the jury that you were looking at the catch ? A. I was. Q. Looking at it all the time you were raising it? A. Yes, sir. Q. Are you able to tell whether it caught or not? A. I am. Q. How can you determine that when you do not know anything about the catch? A'. I felt it catch, and saw it catch.” Chester C. Hadley, who was sitting in the seat immediately behind appellee at the time, testified that she raised the window until it gave a *219sound like a latch, clicking, and that he remembered distinctly of the clicking of the latch just before he started to hand appellee the fruit parings.
These statements were not directly disputed nor denied. If they were true, the inevitable inference followed that the window catch must have been weak, broken or defective, as claimed. Appellant made no showing that the car or its appliances had ever been inspected from the time of construction until after this accident, but rested its defense primarily upon the assumption that the catch was sound, strong and suitable for its intended úse. The catch was tested after the accident by the conductor and others, and there was evidence that upon the first test the conductor remarked “loose catch,” or words to that effect. There was some dispute in the evidence as to whether the catch held the window at all times, or failed to work at times upon these tests, and upon the whole evidence the jury found that the catch was weak, broken or defective as alleged.
In appellant’s original brief it was only asserted in argument, as an inference from the chief contention, that the catch was sound and perfect, that therefore appellee must not have raised the window to its full height; and among the points stated it was not claimed that she was guilty of contributory negligence in this respect. The only point made upon the subject of contributory negligence was as follows:
“Plaintiff’s Contributory Negligence.
(7)
If the plaintiff’s negligence contributed to her injury she cannot recover. A passenger is as much bound to use reasonable care to avoid injury as the carrier is to use the greatest degree of skill and care to save the passenger from harm. Railway coaches are provided with windows to promote the health of passengers, by affording light and ventilation, and to relieve the tedium of the journey by viewing objects along the route, and the place for the passenger’s arms is inside, not outside the coach. Indianapolis, etc., R. Co. v. Rutherford [1867], 29 Ind. 82, 92 Am. Dec. 336,”
*22018. It was shown by the evidence that when appellee entered the eqach in St. Louis the window was np, and while crossing the bridge over the Mississippi river it fell. Appellant’s counsel insisted that this circumstance constituted a warning to appellee, and that the subsequent protrusion of her arm from this window was contributory negligence. Instructions to this effect were tendered and refused.
If appellee’s arm had been injured by the first falling of the window sash, the case of Faulkner v. Boston, etc., Railroad (1905), 187 Mass. 254, 72 N. E. 976, urged upon our attention with apparent confidence, would have been in point, and an influential authority. In that case the court very properly held that in an action fo,r injuries to a passenger caused by the fall of a car window when the train started of its usual motion, it appearing that the window and attachments were in good order, and that the fall must have been due to its not having been properly fastened, and there being no evidence that defendant’s employes raised the window, plaintiff could not recover
The case of Strembel v. Brooklyn Heights R. Co. (1905), 96 N. Y. Supp. 903, is to the same effect, and in which it is said: ‘ ‘ The fall of the window cannot be attributed to defective construction any more than to the failure of the last passenger who raised it to put it all the way up, so as to have it engage the catch, or to see that it did engage the catch firmly.” The case of Goss v. Northern Pac. R. Co. (1906), 48 Ore. 439, 87 Pac. 149, was ruled by the same principle. The court said: ‘ ‘ The evidence as given on the trial was so clear and convincing that the accident was not due to the negligence charged in the complaint as to completely overcome any presumption which may have risen from the mere happening of the accident.”
An approved general statement of the application of the doctrine res ipsa loquitur is found in the case of Price v. St. *221Louis, etc., R. Co. (1905), 75 Ark. 479, 88 S. W. 575, 112 Am. St. 79, cited in appellant’s brief, and is as follows: ‘ ‘ ‘ The true rule would seem to be that when the injury and circumstances attending it are so unusual, and of such a nature that it could not well have happened without the company’s being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has complete control, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury. ’ ” It is manifest even from appellant’s contentions that the unexplained falling of the window while crossing the bridge was not sufficient to ’charge appellee with knowledge that the catch was defective and to subject her to an imputation of contributory negligence in thereafter using the window. Her injury was not the result of allowing her arm to come in contact with an outside object near the track, as was the case in Indianapolis, etc., R. Co. v. Rutherford, supra.
19. Appellee had a right to hoist the window for any proper purpose, and to assume that the catch with which it was equipped .was suitable and sufficient to hold it when latched. • The evidence before set out affirmatively shows that she raised the window until the. latch caught, and, assuming the truth of this statement, the fall could only have occurred because the latch was defective and insufficient in some respect. This was an appliance of the car over which the appellant was required to exercise continuing oversight and care. The court therefore correctly instructed the jury that if the accident and resultant injury were occasioned by reason of a defect in this appliance, a prima facie case of negligence was established, and it was incumbent upon appellant to produce evidence which would excuse such apparent failure of duty. "We have re*222examined all the questions raised by the petition for a rehearing, and find no reason to depart from the holdings announced in the original opinion.
Appellant’s petition for a rehearing is therefore overruled.