(dissenting). The difficulty in acceding to a reversal of this judgment inheres in the conspicuous fact that the legal proposition advanced to sustain the reversal runs counter to the recognized principles of law, which apply to all other cases of general tort-feasance, where an accident occurs, and a reasonable explanation, satisfactory to a jury, accounting for the occurrence of the accident, is ipso facto imposed upon the tort-feasor, as a basis for his exculpation. The ease presents the simple fact of a brakeman, engaged in switching cars, propelled by an engine, upon a railroad track, which abutted the Bergen hillside, commonly known as “The Palisades.” As a result of this switching process a car was derailed by colliding with a boulder, which had rolled down the Palisades, and lodged upon the track, thus causing the accident.
The case went to the jury at the Circuit, and a verdict for the plaintiff resulted. The merits of the case, presenting the question as to the probability of this accident occurring without the interference of an outside agency, and whether the risk of danger was so obvious from the contiguity of the tracks to the hillside as to impose a legal duty of any kind upon the defendant, and the plaintiff, to guard against possible danger, are argued in the brief of defendant as though *283tile questions oí fact thus presented are here on rule to show cause.
These contentions we conceive, under the circumstances, presented jury questions, and are not for us to determine hero upon the refusal of a motion to nonsuit or the refusal to direct a verdict. Clark v. Public Service Electric Co., 86 N. J. L. 144; Willever v. Delaware, Lackawanna and Western Railroad Co., 89 Id. 697: Grybowski v. Erie Railroad, Id. 361.
Plaintiff having proved the accident, the duty was cast upon the defendant of explaining to the jury the circumstances attending its occurrence, and that the defendant is relieved from liability by reason of the fact that it performed iis duty of due care, under the possibility of apparent or possible danger presented by the situation, and the issue thus presented, obviously, became a jury question.
The rule is thus stated by a distinguished writer: “If something unusual happens with respect to defendant’s property, or something over which he has the control, which injures the plaintiff, and the natural inference on the evidence is that the unusual occurrence is owing to the defendant’s act | or want of action], the occurrence being unusual, it is said, in the absence of explanation, to speak for itself that such act was negligent.” Sm. L. Neg. 165, and cases.
The basis of the doctrine of negligence is furnished by the inquiry, long ago settled hv the Courts of Westminster Hall, whether in any given exigency requiring the performance of reasonable care the defendant, conscious of the possibility of danger, exercised reasonable due foresight for harm, and the answer to such an inquiry is for the jury. Vaughan v. Menlove., 3 Bing. N. C. 468; 32 Eccl. 208; Hill v. Winsor, 118 Mass. 251.
That test of liability has been applied in cases of this character both in this court and in the Supreme Court. Griffin v. Director General, 95 N. J. L. 490; Beck v. Director General, Id. 158; Mackenzie v. Oakley, 94 Id. 66.
In the latter case ihe Supreme Court declared as to a situation substantially duplicated here: “The situation presented *284is within the rule applicable to an accident which suddenly and for no apparent cause happens; and yet, from the very fact of its occurrence an abnormal situation 'is presented, which bespeaks negligence in operation, under the rule of res ipsa loquitur, which calls upon the defendant for an explanation to exculpate herself from the legal inference or presumption of negligence arising thereform. . The situation thus presented evolved an issue of fact for the jury as to whether the defendant’s explanation uras sufficiently exculpatory.”
Tn this instance the contiguity of the tracks to the base of the almost perpendicular Palisades, whose geological history we may judicially notice as a mass of basaltic rock of volcanic or glacial origin, about which quarry explosions of varying intensity frequently occur, which may result' in detaching from their beds rock formations, but loosely held; not to speak of the added vibrations of numerous trains passing to and from the railroad yards, presented a situation of at least incipient danger, which required at least due exercise of reasonable care in observation and track walking to guard against; not only for the protection of the operatives of the railroad, but also for the protection of the traveling public, using the railroad as a highway. Whether that degree of care was exercised, which under the circumstances was reasonably requisite, and which is standardized by the foresight of the reasonably prudent man, became a jury question and wras properly submitted to the jury. Monroe v. Pennsylvania Railroad, 85 N. J. L. 688.
These natural possibilities of inherent structural danger were emphasized in this case by the specific testimony that loose stones had on other occasions rolled dowm the hillside, after rain or a frost, and approached the roadbed of the defendant, without, in the language of one witness, going “quite as far as the track.” A jury in such a situation might wrell consider, and it was their peculiar province to consider facts of that character as sufficiently indicative to the prudent man.of the probabilities of the existence of a lurking danger which, without the exercise of due care and reasonable fore*285sight, inhered in the situation; and in the disposition o£ that question also was comprehended the collateral question of assumption of risk, in so far as that question may he considered under the federal act.
The verdict, therefore, was within the province of the jury to render and should be affirmed.
For affirmance — Swayze, Mint urn, Kalis oh, Blaok, Williams, Ackerson, Van Buskirk, JJ. 7.
For reversal — The Chancellor, Cujee Justice, Teencttard, Parker, Berwen, Katzenrach, White, Gardner,, JJ. 8.