The difference in the views of these jurisdictions is one of expression rather than of substance. The use of the maxim, res ipsa loquitur, which has a well-understood meaning in carrier cases, where it is ordinarily found, does not aid the decision of cases where a servant sues his master. When an accident that commonly may be prevented by the use of care happens to a passenger on a railroad, the probability is that it happens through negligence, and through negligence for which the defendant is responsible, since from the nature of the duty cast upon him the question which of his servants was negligent or the history of the accident is immaterial upon his liability. When such an accident happens to a servant, although there is the same probability that it happens through negligence, yet before a breach of the master's duty appears there are other probabilities, which the fact of the accident raises, that must be con

from the explosion of the boiler. Such is the rule where an employe or servant sues, although a different principle is held to prevail where an injury is received by a passenger on a railroad in consequence of a defect in any of its machinery or appliances." Louisville & N. R. Co. v. Allen's Adm'r, 78 Ala. 494, 503; Louisville & N. R. Co. v. Campbell, 97 Ala. 147, 151 (brake); Tuck v. Louisville & N. R. Co., 98 Ala. 150 (parting of train); Louisville & N. R. Co. v. Binion, 107 Ala. 645 (brake). See Tennessee C., I. & R. Co. v. Hayes, 97 Ala. 201, 207 (moving car).

"It must be conceded negligence was not established by proof of the accident. The happening of an accident does not establish negligence as against the company, and in favor of the employe, whatever the rule may be in actions brought by injured passengers. It was not one of those peculiar accidents concerning which the railroad company has special knowledge, and where the burden of proof might be shifted when the evidence once established the occurrence." Denver & R. G. R. Co. v. McComas, 7 Colo. App. 121, 123 (rock on track); Bishop v. Brown, 14 Colo. App. 535 (explosion of boiler); infra, § 54.

sidered. It may have happened through a latent defect, through a risk assumed, through the negligence of a fellow servant, and for none of these is the defendant answerable. Thus, the plaintiff cannot show a breach of duty until these other probabilities are denied, and it is only when he has negatived them that he stands, as it were, in the position of a stranger, and may say that the fact of accident is some evidence of negligence. The defendant's negligence is, then, the only probability remaining, and, in the absence of explanation, is enough to support the plaintiff's verdict. The maxim expresses no peculiar rule, for in any case a jury find a verdict upon the balance of probabilities, and to state this as a rule leads to confusion.

In passing upon the question of the existence of evidence upon which a plaintiff may go to the jury, the court finds difficulty in saying whether a given accident is of such a nature that reasonable men would, from their experience, infer that it was caused from lack of care. In order to rest merely upon proof of the accident without other evidence of negligence, a plaintiff must be certain that the every-day experience of men finds such accidents resulting from negligence. The court will not send a case to a jury where it believes such is not the common experience.

§ 51. Statutory enactments.

The violation by an employer of a statute passed for the protection of his employes is admissible evidence on the question of his negligence, if the violation contributed to the injury. Although such a statute imposes a penalty upon the employer, the employe may have an action under it, if the pur

pose of its enactment is to protect or benefit a class of per

sons.

When a statute or municipal ordinance imposes a duty upon a defendant, and through a violation of it injury is proximately caused to a stranger, evidence of this violation may be introduced upon the question of the defendant's negligence; and the better opinion is that such violation is prima facie, and not conclusive, evidence of negligence.124 When the plaintiff is a servant, it would seem that the same principle should apply.125

The nature and purpose of the statute determines the question whether a violation of it subjects the defendant to a criminal prosecution, to an action by the person injured, or to both. The provision for penalty in case of violation is not conclusive. If the statute is for the

124 Wright v. Malden & M. R. Co., 4 Allen (Mass.) 283; Lane v. Atlantic Works, 111 Mass. 136; Hanlon v. South Boston H. R. Co., 129 Mass. 310; Newcomb v. Boston Protective Department, 146 Mass. 596; Van Norden v. Robinson, 45 Hun (N. Y.) 567; McRickard v. Flint, 114 N. Y. 222; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; McCambley v. Staten I. M. R. Co., 32 App. Div. (N. Y.) 346; Hayes v. Michigan Cent. R. Co., 111 U. S. 228; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262; Blamires v. Lancashire & Y. Ry. Co., L. R. 8 Exch. 283. In Indiana, Alabama, and Colorado it is conclusive evidence of negligence. Pennsylvania Co. v. Hensil, 70 Ind. 569; Indiana, B. & W. Ry. Co. v. Barnhart, 115 Ind. 399; Pennsylvania Co. v. Horton, 132 Ind. 189; Gothard v. Alabama G. S. R. Co., 67 Ala. 115; South & North A. R. Co. v. Donovan, 84 Ala. 141; Western Ry. v. Sistrunk, 85 Ala. 352; Platte & D. C. & M. Co. v. Dowell, 17 Colo. 376. See Sess. Laws Colo. 1897, c. 69; Narramore v. Cleveland, C., C. & St. L. Ry. Co. (C. C. A.) 96 Fed. 298.

125 Baddeley v. Earl Granville, 19 Q. B. Div. 423; Coe v. Platt, 6 Exch. 752, 757; Cooke v. Lalance Grosjean Mfg. Co., 33 Hun (N. Y.) 351; Gorman v. McArdle, 67 Hun (N. Y.) 484. See Turner v. Boston & M. R. R., 158 Mass. 261. Failure to comply with the statute is per se evidence of negligence. Thompson v. Wright, 22 Ont. 127. See Groves v. Wimborne [1898] 2 Q. B. 402.

benefit of the public at large, and in the nature of a general police regulation, a violation of it is not a cause of action by the person injured.126 But when the violation creates a nuisance,127 or the statute has been enacted for the benefit and protection of a class of persons, a private action will lie, although a criminal prosecution might also be instituted.128 Of this latter class of statutes are those relating to the regulation and conduct of particular businesses, of the employment of women and children, of the guarding of elevators, fencing of dangerous machinery, and the like.129 Under the factory and workshop act in England it was held after debate that the servant injured by a violation of its provisions might maintain an action, although a penalty was imposed on the employer. "The owners of the factory are at fault for not having this shaft securely fenced, and are prima facie liable in damages for the consequences of that fault, for I cannot adopt the view that their liability is limited to the penalty imposed by the statute for the neglect of its provisions. I think that the neglect of the statutory provisions creates a prima facie case of fault against the factory

126 Gorris v. Scott, L. R. 9 Exch. 125; Clegg v. Earby Gas Co. [1896] 1 Q. B. 592; Kirby v. Boylston Market Ass'n, 14 Gray (Mass.) 249.

127 Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Salisbury v. Herchenroder, 106 Mass. 458; Quinn v. Lowell Electric Light Corp., 140 Mass. 106.

128 Groves v. Wimborne [1898] 2 Q. B. 402; Hayes v. Michigan Cent. R. Co., 111 U. S. 228; Parker v. Barnard, 135 Mass. 116.

129 Coal Mines Regulation Act (50 & 51 Vict. c. 58); Factory & Workshop Act (41 & 42 Vict. c. 16; 58 & 59 Vict. c. 37); Sess. Laws Colo. 1897, c. 69; Acts Ind. 1897, c. 65; Acts Ind. 1899, c. 142; Rev. Laws Mass. c. 104, §§ 4-8, 22-28, 40-44; Id. c. 105; Id. c. 106; §§ 19-24, 28, 29, 41-43; Id. c. 111, §§ 183, 201-209.

owners, which will render them liable in damages to their employes who may have been injured through that fault."130 And a later case went further in saying that, where "there has been a failure in the performance of an absolute statutory duty, there is no need for the plaintiff to allege or prove negligence on the part of any one in order to make out his cause of action."131 In Massachusetts the point has not been decided,132 but the weight of authority in the United States agrees with the English view.133

When the breach of a statutory obligation gives a right of action, the plaintiff is not relieved of the necessity of showing his freedom from contributory negligence,134 and, if he goes to work in a place where the

130 Kelly v. Glebe Sugar Refining Co., 20 Rettie, Ct. Sess. Cas. (4th Ser.) 833.

131 Groves v. Wimborne [1898] 2 Q. B. 402. See, also, Gibb v. Crombie, 2 Rettie, Ct. Sess. Cas. (4th Ser.) 886; Gray v. Thomson,

17 Rettie, Ct. Sess. Cas. (4th Ser.) 200; Couch v. Steel, 3 El. & Bl. 402; Holmes v. Clarke, 6 Hurl. & N. 349; Clarke v. Holmes, 7 Hurl. & N. 937; Atkinson v. Newcastle & G. W. Co., 2 Exch. Div. 441; Britton v. Great Western Cotton Co., L. R. 7 Exch. 130.

132 Foley v. Pettee Machine Works, 149 Mass. 294.

133 Hickey v. Taaffe, 32 Hun, 7, 99 N. Y. 204; Cobb v. Welcner, 75 Hun (N. Y.) 283; Knisley v. Pratt, 75 Hun (N. Y.) 323; Stewart v. Ferguson, 34 App. Div. (N. Y.) 515; Narramore v. Cleveland, C., C. & St. L. Ry. Co. (C. C. A.) 96 Fed. 298; Klatt v. N. C. Foster Lumber Co., 97 Wis. 641.

There is some conflict whether statutes requiring warning signals or fencing tracks apply to servants. Do not apply to servants, Carper v. Receivers of Norfolk & W. R. Co. (C. C. A.) 78 Fed. 94; Wright v. Southern Ry. Co., 80 Fed. 260; Randall v. Baltimore & O. R. Co., 109 U. S. 478; Louisville & N. R. Co. v. Markee, 103 Ala. 160. Do apply, East St. Louis Connecting Ry. Co. v. Eggmann, 71 Ill. App. 32; Illinois Cent. R. Co. v. Gilbert, 157 Ill. 354.

134 Groves v. Wimborne [1898] 2 Q. B. 402; Taylor v. Carew Mfg. Co., 143 Mass. 470; Matta v. Chicago & W. M. Ry. Co., 69 Mich. 109;