Bell v. Refuge Oil Mill Co.

Whiteield, J., delivered tbe opinion of the court. There may be cases where the mere proof of tbe accident furnishes presumptive proof of negligence; as where persons passing along a street are injured by tbe falling out upon them of a wall (Mullen v. St. John, 57 N. Y., 567, s.c. 15 Am. Rep., 530), or where one passing under defendant’s bridge over a highway was injured by a brick falling from the mason work thereof. L. R., 6 Q. B., 759. And see other illustrations in note to Barnowski v. Helson, 15 L. R. A., 33. But even in these cases it is more accurate to say that the proof of tbe accident involves necessarily the proof also of negligence, than that the negligence is presumed without proof of it. But in this case we do not think these decisions help appellant. Tbe most reasonable conclusion from the testimony is that appellant in some way lost bis balance, and in falling jerked “the [391] horse” out with him in his fall. “The horse” might be perfectly adapted to the use for which it was designed, and yet not be able to withstand so violent a wrench as a falling man would thus give it. And so the fact that “the horse” — that part of the apparatus — fell also, does not properly have the effect of showing that the apparatus was improperly placed or adjusted. It might have been properly placed and adjusted, and yet non constat but that such an extraordinary wrench as a falling man might give it would jerk it out of place. We think the learned court below reached the right conclusion. Affirmed.