Dissenting.
In her original petition plaintiff did not aver that another car was passing her car at the time of the injury, but under order of court, she makes, upon information and belief, the conditional charge that a passing outbound car might have caused the injury. Although this tardiness shows clearly that the inclusion of the second ear as the possible cause of the accident was only an after-thought, the carrier com pletely rebutted this additional charge.
The motormen and conductors of both cars swear positively that their cars were equipped with screens ten inches high covering the lower part of the windows and with bars above the screens, that the cars were running slowly, that there was no bumping or jarring, no scraping, no broken parts; that the track was in good order, that a thorough examination of each car shortly after the accident disclosed no sign of any scratching or breaking of screen bar or side.
The fact that plaintiff says she was hurt while another car was passing does not prove that the other car caused the injury.
Mere coincidence in time does not' prove causality.
The testimony of the operators of the two cars as to safe and careful handling is confirmed by several passengers and there is no proof that any instrumentality operated,or controlled by defendant was even a remote causal factor.
The testimony of plaintiff and her witnesses as to the circumstances is vague and indefinite. In fact plaintiff first states positively twice that she was sitting with her back to the motorman, which would have put her injured arm toward the center of the car and in this statement she is confirmed by one of defendant’s witnesses who was sitting just behind her.
To support the conclusion that the carrier must prove the actual cause of the injury, the majority opinion cites two leading cases:
Hopkins vs. N. O. Railway & Light Co., 150 La. 61, 90 So. 512.
LeBlanc vs. Sweet, 107 La. 355, 31 So. 766.
In both of these cases, the specific charges of negligence, made by plaintiffs, were denied by defendant and there were definite issues o.f fact before the court, which were only decided ater the most painstaking analysis of evidence. That the decisions in these two cases were based on the weight of the evidence is shown by the fact that Chief Justice Monroe, the organ of the court in the earlier decisión, dissented in the later.
The broad and general statements of the court as to burden of proof in passenger claims were obiter dicta, because they were not necessary to the conclusion.
The law seems to me correctly stated in Haynes vs. L. R. & N. Co., 140 La. 1025, 74 So. 538, where the Supreme Court held:
*689“The burden, of proof is on the carrier to prove absence of negligence and not on the passenger to prove negligence where it is shown a contract of carriage has not been fulfilled.”
Unquestionably the burden of proof shifts to the carrier, when the passenger proves that an injury has occurred in one of the carrier’s vehicles, but the carrier meets that burden, when he proves absence of negligence for this, in the very nature of the case, is all that he can possibly do, when the injury happens in the middle of a crowded car, with the motorman in the front and the conductor in the bach.
The rule of res ipsa loquitur does not apply in such a case as this.
The true doctrine is well stated in the case of Saunders vs. Norfolk & W. Ry. Co., 117 S. E. 4, where the court quotes approvingly from Boucher vs. Railroad 79 Atl. 993, the following:
“The plaintiff’s right of action is based on negligence, and negligence must be shown to authorize a recovery. If the accident may have been due to other causes than the carrier’s negligence, the fact of the accident does not .authorize the inference of negligence; but, if the thing causing the injury is entirely within the control of the defendant, and in the' ordinary course no accident would result if due care were exercised, the happening of such an accident may authorize an inference of negligence. ‘The fact of any injury is not sufficient. It must be traced to the carrier. It must be shown to have proceeded from something under his control, or from some danger which, under the obligation of extraordinary care, it was his duty to anticipate and provide against.”
3 Thomp. Com. Neg. Pars. 2754-2762; Scott vs. London Docks Co., supra; 4 Wig. Ev. Par. 2509; 6 Cyc. 629. Upon the proposition the cases are now in entire accord. The inference of negligence arises, not from the fact of the injury, but from the circumstances under which it occurred. Pennsylvania R. R. vs. MacKinney, 124 Pa. 462, 17 Atl. 14, 2 L. R. A. 820, 10 Am. St. Rep. 601; Philadelphia, etc., R. R. vs. Anderson, 72 Md. 519, 20 Atl. 2, 2 L. R. A. 673, 20 Am. St. Rep. 483, and note 490; Barnowsky vs. Helson, 89 Mich, 523, 50 N. W. 989, 15 L. R. A. 33; Western Trans. Co. vs. Downer, 11 Wall, 129, 134, 20 L. Ed. 160.
See also Plumb vs. Richmond Light & R. Co., 223 N. Y. 285, 135 N. E. Rep. 504, where the court says:
“Shifting the burden of explanation or of going on with the case does not shift the burden of proof. If a satisfactory explanation is offered by the defendant the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance 6f evidence in favor of plaintiff’s contention.”
See also McGinn vs. New Orleans Ry. & Light Co., 118 La. 811, 43 So. 450, a case on all fours with the present, where the court uses the following language:
“The proposition contended for by plaintiff — that in an action of this character all that the plaintiff bringing it is required to prove is the accident, the fact that she was a passenger, and that she had not been safely placed on the ground at her destination, when the burden shifts to the defendant company to prove that the accident did not arise from any negligence on its part, or that of its agents or employees — is too broadly stated. The circumstances surrounding and connected with plaintiff’s accident were of character such as to withdraw against the defendant any ■ presumption of fault or negligence, and it should, not be held responsible.
“The rigor of the rule announced in Article 2754 of the Civil Code touching the burden of proof of carriers is to some degree relaxed in the case of damage to passengers from whsit it is in reference to things in their care.”
None of the cases quoted in the majority opinion go so far as to justify the ruling in the instant case where the defendant has made all the proof possible under the circumstances.
“Lex neminim ad vana cogit.”
For these reasons I respectfully dissent.