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be run under them (without the question as to such looseness being confined to a particular time); that the ties made an uneven surface, so that cars running over it caused the rails to go down (without question being confined to any particular time or place); that the track was not very smooth 'along where this derailment was " (question as to place was in the words quoted, and not limited to any particular time); the ties were loose in some places, and the rails were all old. The condition of the track and road-bed at the time and place of the derailment was certainly material; but we think that the testimony objected to, as we have above grouped it, shows plainly that the learned trial court admitted what tended as much to show former and general negligence about track and road-bed as it did to show that particular negligence for which alone appellant would be liable in this action. That the land along this portion of the track was low and wet is not material, in any sense, so far as the other evidence shows; and the effect, if any, upon the jury of testimony in that behalf could only have been to confuse. We may suppose that plaintiff's witnesses were asked, in reference to the land being low and wet, as a reason for and to corroborate their statement of the badness of the track, although such reason does not appear except inferentially. But, as a matter of fact, land merely low and wet, provided it have, as is frequently the case, a stiff sub-soil, offers no obstacle whatever to the making of a smooth and permanent road-bed. It is evident that appellant intended the road-bed here made to be permanent, as it appears from the evidence that an embankment had been thrown up, and the track ballasted with gravel. It was therefore error to admit testimony as to such lowness and wetness, treating it as in itself a primary material fact; perhaps not such vital error as would, if standing alone, cause an appellate tribunal to reverse, yet one which, linked with the vagueness as to time and place with which condition of track was described in accompanying testimony, as above cited, may well have tended to influence the jury to appellant's prejudice.

We have already indicated that there was error in not confining testimony as to condition of track more closely to the time and place of the accident. The exact place of the broken rail and of the derailment seems to have been known to the witnesses. The language of the supreme court of Minnesota, in a recent case, seems pertinent in this connection: "The evidence, under the circumstances, should have been limited to those defects which caused, or reasonably might have conduced to producing, the defect existing at the place of casualty. ... The only exceptions to this rule which now

occur to us are where the other defects were shown to be the result of a cause, presumptively operating at the place of casualty, or where such defects might have caused a defect which produced the injury. But there are no facts shown bringing this case within any such exception." Morse v. Railway Co., 30 Minn. 465, 16 N. W. Rep. 358.

The evidence of plaintiff's witnesses as to the condition of track seems to refer to the same in both directions from the acident. No reason is attempted to be shown that would render material the condition of the track beyond the place of accident, in the direction the train was moving. It is barely possible that such reason might exist, and be found valid, if supported by appropriate evidence. An officer at West Point is said to have struck the trunnion of a cannon. repeatedly with equal blows of a hammer. At the hundredth blow, or thereabouts, the trunnion was broken; and it has been philosophically remarked that not the hundredth blow, but all the blows, did the breaking, In like manner it might be argued (and possibly proved) that, within certain limits, the fact of rough track in both directions from a broken rail, by causing undue swaying of the train, caused undue strain of the rail with every passing car, thereby shortening the life of the rail, and affixing to it a fatal but undiscoverable likelihood to break every next time. However, we shall not speculate upon the hypothetical effect of what we certainly do not judicially know, nor, as at present advised, otherwise

know.

That portion of the charge to the jury which we think it necessary to examine in relation to the assignments of error is as follows:

"Experience proves that when the track and machinery are in perfect condition, and prudently operated, the trains will keep upon the track, and run thereon with entire safety to those on the cars,-the passengers on board.

Instructions—

railment.

"Whenever a car leaves the track and goes Presumption down an embankment, as this car did, it proves of negligence that either the track or the machinery, or some in case of de portion thereof, is not in proper condition, or that the machinery is not properly operated, and presumptively proves that the defendant, whose duty it is to keep the track and machinery in proper condition and to operate it with necessary prudence and care, have in some manner violated their duty to the plaintiff."

There is error in the first of the two paragraphs quoted, in that it assumes as judicial knowledge what is at best only a disputable conclusion of fact; disputable certainly, unless we apply as the test of "perfect condition" and "prudent

operation" the misleading but otherwise "barren ideality' of pronouncing no track "perfect" and no machinery "prudently operated" except after a passage safely made. Indeed, the very use of the word "perfect" in this connection, and unexplained, is objectionable, as likely to cause the jury to think that the law exacts of railway corporations the duty of furnishing something better than a reasonably good track for the transportation of passengers, a track, say, ideally good. That superlatives in this behalf are at least unnecessary, see Cunningham v. Hall, 4 Allen, 268, where the court say: "Reasonable care or skill is a relative phrase, and what this requires is always to be determined by consideration of the subject-matter to which it is applied;" holding that “reasonable care or skill" would require of a ship-builder to use the same degree of care or skill as if he were in terms required to use the utmost possible skill. The first paragraph quoted of the charge, and that portion of the second paragraph preceding the words "and presumptively proves," affirm, taken together as they occur in the charge, propositions to the unmistakable effect that the happening of such accident is conclusive, instead of prima facie, proof of negligence. Should the remainder of the second paragraph, as quoted, be held to state a correct proposition of law, such would not cure this fatal error. We are not aware of any authority holding that a jury may be expected to discover a lurking contradiction, and decide correctly, between different statements of the law. The judgment of the court below is reversed, and a new trial ordered.

All the justices concurring.

Evidence Admissible as to Condition of Track in Case of Accident.-See Sidekum v. Wabash, etc., R. Co., 30 Am. & Eng. R. R. Cas., 640, note, 644; Vicksburg, etc., R. Co. v. Putnam, 27 Ib. 291, note, 299.

Presumption of Negligence in Case of Derailment.-See Central R. Co. v, Sanders, 27 Am. & Eng. R. R. Cas. 300; Vicksburg, etc., R. Co. v. Putnam, 27 Ib. 291; Hepsley v. Kansas City, etc., R. Co., 27 Ib. 287; Coudy v. St. Louis, etc., R. Co., 27 Ib. 291; Philadelphia, etc., R. Co. v. Anderson, 6 Ib. 407; note to St. Joseph, etc., R. Co. v. Wheeler, 26 Ib. 179; New York, etc., R. Co. v. Seybolt, 18 Ib. 162; Little Rock, etc., R. Co. v. Miles, 13 Ib. 10; George v. St. Louis, etc., R. Co., 1 Ib. 294; Pittsburgh, etc., R. Co. v. William, 3 Ib. 457; Cleveland, etc., R. Co. v. Newell, 3 Ib. 483; Louisville, etc., R. Co. v. Ritter, 28 Ib. 167.

PERSHING, Adm'r,

ย.

CHICAGO, BURLINGTON AND QUINCY R. Co.

(Iowa Supreme Court, March 25, 1887.)

Passenger-Wrongful Killing--Burden of Proof.-In an action to recover damages for the death of a passenger caused by the train being derailed and precipitated through a bridge, if the plaintiff has introduced evidence sufficient to raise a presumption of negligence on the part of the company, the burden of proving that the accident was not caused by any negligence or want of skill rests with the defendant, but it need not prove that nothing about its entire track was defective, but only that, as to the matters which the circumstances indicated were the cause of the accident and injury it had exercised due care.

Same-Duty of Carrier-Degree of Care.-A carrier of passengers in the conduct and management of his business, and as to all the appliances made use of in the business, is bound to exercise the highest degree of care and diligence for the convenience and safety of his passengers, and is held liable for the slightest neglect.

Same-Selection of Materials. A railway company, employed in transporting passengers, exercises a sufficient degree of care in the selection of the plans and materials for the construction of its road and appliances, if it select such plans and materials as are in use and have been found sufficient by the best and most skilfully conducted roads of the country. Same-Construction of Bridges.--In constructing and maintaining its bridges, a railway company is bound to take into account the fact that accidents may occur in the operation of its road, and to construct its bridges with reference thereto; and it is held to a very high degree of care in that respect.

APPEAL from Circuit Court, Polk County.

Action to recover damages for the death of plaintiff's intestate. The deceased was a passenger in one of defendant s trains, and received the injuries which caused her death, in an accident which happened to the train, some distance before reaching a bridge over a ravine, the train was derailed by a broken rail. On reaching the bridge the wheels on one side passed outside the guard rail, and the bridge gave way. The car in which the deceased was travelling was precipitated to the bottom of the ravine, and she was fatally injured. At the trial the jury brought in a verdict for the defendant, and the plaintiff appeals.

Parsons, Perry & Sherman for appellant.

7. W. Blythe, H. H. Trimble, and Runnells & Walker for appellee.

Facts.

REED, J.-It is alleged in the petition that the injury was caused by the negligence of the defendant, and that its negligence consisted (1) in the manner in which its track and bridge was constructed and maintained, the latter being insufficient; and (2) in the manner in which the train was being run at the time of the accident. The evidence is not contained in the abstract, but it is recited in the "bill of exceptions" that plaintiff introduced evidence tending to prove the occurrence of the accident and injury, and that the deceased was not guilty of any contributory negligence, and that the accident was caused by the negligent manner in which the track and bridge were constructed and maintained, and the negligent manner in which the train was being run at the time, and by the insufficiency of the bridge, and that he then rested his cause; that the defendant thereupon introduced evidence tending to prove that its road, and said bridge and its rolling stock, and its servants and agents, were in all respects such as were accepted by, and were in general use, and found to be sufficient and approved by, the best and most skilfully managed railroads of the country, doing a like business under like circumstances with it; and the selection of its materials, the plan and construction of its roadway, track, bridges, and rolling stock, and the selection of its employees, servants, and agents, and the inspection and repairs of its road and machinery, and appliances connected with the operation of the road, were such as the best, most carefully, prudently, and skilfully managed railroads in the country exercise and require, doing a like business, and under like circumstances; and that the bridge went down, and the car in which the intestate was riding was thrown into the ravine, by reason of the derailment of the train at a point 378 feet from the bridge; that the ties, rails, and fastenings, and the ballast thereunder at that point, and between there and the bridge, were in all respects such as had been found sufficient by the most skilfully and prudently managed railroads of the country, doing a like business, under similar circumstances; that the same were, from time to time, and as frequently as by other railroads, inspected in the usual way of inspecting such appliances, by the most carefully and prudently managed railroads of the country, by an employee of competent skill and experience in such matters; and that the rails and joint fastenings appeared sound, and all their supports sound and secure; and that there were no flaws or defects visible that could have been discovered by such inspection; and that the shock or blow which caused the bridge to fall was of unusual and extraordinary violence, and that the bridge would not have otherwise have gone down, and that