The Wabash, St. Louis and Pacific Railway Co. v. Locke, Administrator. The obligation of the railway company did not, however, require it to make the place absolutely safe. It was not required to make accidents impossible. Its duty was not to allow its depot and grounds, to and upon which people were invited to come, to become more dangerous than such a place would reasonably be, having regard for the necessities of its business and the nature of the contrivances necessarily employed in carrying it on. The case, therefore, stands upon a different footing from the cases which involve the duties of carriers who contract to carry passengers safely to a particular destination. In such cases proof of an injury ordinarily establishes a prima facie case of negligence in favor of a passenger which the carrier must overcome. Cleveland, etc., R. R. Co. v. Newell, 104 Ind. 264 (54 Am. R. 312). Where, as in the case under consideration, the obligation is not in its nature so nearly absolute, and the circumstances. of the accident suggest, at first blush, that it may have been unavoidable, notwithstanding ordinary care, the plaintiff charging negligence assumes the burden of proving that the defendant has, by some act or omission, violated a duty incumbent on it, from which the injury followed in natural sequence. The Nitro-Glycerine Case, 15 Wall. 524; Mitchell v. Chicago, etc., R. W. Co., 51 Mich. 236 (47 Am. R. 566); Patterson Railway Accident Law, section 373. We are not unmindful of those cases in which it appeared that persons passing along public streets or highways had sustained injury by being struck with dangerous substances thrown, or by the falling of objects from buildings into public streets. It has been held that from the happening of such an accident, in the absence of explanatory circumstances, negligence will be presumed. These cases go upon the theory that the injurious thing was inherently and intrinsically dangerous, hurtful and insecure, and that it was hence necessary for the defendant to show that he was exercising reason 'The Wabash, St. Louis and Pacific Railway Co. v. Locke, Administrator. able care at the time of the accident. Mullen v. St. John, 57 N. Y. 567 (15 Am. R. 530); Pollock Torts, 421. Taking the admitted or established facts, and those most favorable to the plaintiff, and the inquiry in the present case must be, does it appear, or can it be inferred, that the railroad company failed to observe such precaution for the safety of the plaintiff's decedent, and others similarly situate, as ordinarily regulates the conduct of reasonable men? or can it be inferred from the evidence that reasonable men engaged in like business would have anticipated and provided against the accident which happened? If no such inference could properly have been drawn, then there was no wrong; the company was not negligent, and there is no liability. "If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom." The party upon whom such an injury chances to fall, no matter how much our sympathies may be excited in his behalf, is necessarily left to bear it. Lewis v. Flint, etc., R. W. Co. 54 Mich. 55; Bennett v. Ford, supra. Mischief, which could by no reasonable possibility have been foreseen, and which no reasonable person would have anticipated, can not be taken into account as a basis upon which to predicate a wrong. "Now a reasonable man," says a recent learned author, "can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things." Pollock Torts, 36. The proper inquiry is not whether the accident might have been avoided if the company had anticipated its occurrence, The Wabash, St. Louis and Pacific Railway Co. v. Locke, Administrator. but whether, taking the circumstances as they then existed, the company was negligent in failing to anticipate and provide against the occurrence. Beatty v. Central Iowa R. W. Co., 58 Iowa, 242 (8 Am. & Eng. R. R. Cases, 210). The duty imposed does not require the use of every possible precaution to avoid injury to individuals, nor that the company should have employed any particular means which it may appear after the accident would have avoided it. It was only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. Chicago, etc., R. R. Co. v. Stumps, 55 Ill. 367. These principles are illustrated in a great variety of cases, some of which may with propriety be referred to more particularly. In Sjogren v. Hall, 53 Mich. 274, the plaintiff, by some accident not explained, lost his leg by being caught in a wheel connected with the operation of a saw-mill in which he was employed. The plaintiff claimed that the defendant was negligent in leaving the wheel uncovered, and that at a very small expense the accident could have been prevented. COOLEY, J., delivering the opinion of the court, said: "If the accident which occurred was one at all likely to happen-if it was a probable consequence of a person working about the wheel that he would be caught in it as the plaintiff was,-there would be ground for pressing this argument. But the accident can not be said to be one which even a prudent man would have been likely to anticipate. **** So far as there is a duty resting upon the proprietor in any of these cases, it is a duty to guard against probable dangers; and it does not go to the extent of requiring him to render accidental injuries impossible." Richards v. Rough, 53 Mich. 212; Mitchell v. Chicago, etc., R. W. Co., supra. So, in the case of City of Allegheny v. Zimmerman, 95 Pa. St. 287 (40 Am. R. 649), which was a suit to recover for injuries sustained by the falling of a liberty pole which had The Wabash, St. Louis and Pacific Railway Co. v. Locke, Administrator. been erected in the street, it was held, following the general rule, that "one is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature." Fairbanks v. Kerr, 70 Pa. St. 86; Baker v. Fehr, 97 Pa. St. 70; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. St. 293 (27 Am. R. 653). Loftus v. Union Ferry Co., 84 N. Y. 455 (38 Am. R. 533), involved analogous principles. That was a suit predicated upon a charge of negligence in maintaining an insufficient guard on the side of a float used by passengers going upon and leaving the ferry-boat. In some manner, not clearly explained, a child, in leaving the ferry-boat in company with its mother, fell through or over the guard and was drowned. The float had been used for five or six years before the accident, and was similar to the floats at other ferries. Great numbers of persons had passed over it, and no accident had happened before. The court, giving judgment for the defendant, said: "It was possible for the defendant so to have constructed the guard, that such an accident as this could not have happened; and this, so far as appears, could have been done without unreasonable expense or trouble. If the defendant ought to have foreseen that such an accident might happen, or if such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years, certifying to the sufficiency of the guard. ** That this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty." Dougan v. Champlain, etc., Co., 56 N. Y. 1; Crocheron v. North Shore, etc., Co., 56 N. Y. 656; Cleveland v. New Jersey, etc., Co., 68 N. Y. 306; Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 N. Y. 396. The Wabash, St. Louis and Pacific Railway Co. v. Locke, Administrator. Crafter v. Metropolitan R. W. Co., L. R. 1 C. P. 300, was a suit to recover for an injury occasioned by the plaintiff falling on a stairway, which the defendant's duty required it to keep in a safe condition. The cause of the slipping was that the brass nosing of the stairs had been worn smooth by travel over it, and a builder testified that in his opinion the staircase was unsafe on account of the smooth condition of the nosing and the absence of a hand-rail. There was nothing to contradict this, except that great numbers of persons had passed over the stairs, and that no accident had ever happened before. Setting aside a verdict for the plaintiff, the court held there was no evidence of negligence. Blyth v. Birmingham Waterworks Co., 11 Ex. 781; Metropolitan R. W. Co. v. Jackson, L. R. 3 App. C. 193; Sharp v. Powell, L. R. 7 C. P. 253. In a very recent case it appeared that a passenger seated in a railway car was injured by the falling of a clotheswringer from the rack above the seat, another passenger having placed it there. There was no evidence that the position of the wringer in the rack was such as to indicate that it was insecure, or that there was any reason to anticipate that an accident might happen. It was held that the failure of the trainmen to notice the wringer, or, if noticed, to order its removal, was not negligence. Morris v. New York Central, etc., R. R. Co., 9 Cent. Rep. 288. These cases, to a greater or less extent at least, go upon the theory that persons who are charged with a duty in relation to a particular matter or thing have a right to rely upon the sufficiency of a structure or contrivance, such as is in common use for the purpose, and which has been in fact safely used under such a variety of conditions as to demonstrate its fitness for the purpose. When a structure or appliance, such as is in general use, has uniformly answered the purpose for which it was designed and used, under every condition supposed to be possible in the business, it can not in reason be said that a person has not acted with ordinary |