The instinct of self-preservation is not alone sufficient to establish due care; Wright v. R. Co., 74 N. H. 128, 65 Atl. 687, 8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949; and the exercise of due care cannot be sustained by mere conjecture and speculation, or by show ing or assuming what men in general would have done ; id.; Binewicz v. Haglin, 103 Minn. 297, 115 N. W. 271, 15 L. R. A. (N. S.) 1096, 14 Ann. Cas. 225; contra, Adams v. Min. Co., 12 Idaho, 637, 89 Pac. 624, 11 L. R. A. (N. S.) 844, where it was held to con stitute prima facie proof of the exercise of ordinary care.
The mere fact that a passenger train runs into an open switch and collides with cars standing thereon does not raise a pre sumption of gross negligence on the part of the carrier in favor of an injured passen ger; Southern R. Co. v. Lee, 101 S. W. 307, 30 Ky. L. Rep. 1360, 10 L. R. A. (N. S.) 837.
There is no presumption of negligence on the part of the defendant for injury caused by his horse running away, where the only evidence as to the driver was that, when he was first seen, he was falling towards the ground ; Rowe v. Such, 134 Cal. 573,, 66 Pac. 862, 67 Pac. 760.
Where there is a requirement for cars to "run slow," proof of the violation of such requirement by a motorman directly result ing in an injury to a pedestrian is evidence from which the jury may find a street rail way company liable for negligence; Hay ward v. R. Co., 74 N. J. L. 678, 65 Ail. 737, 8 L. R. A. (N. S.) 1062.
It said that a presumption of negli gence arises from the occurrence of an ac cident in the course of a business, which may, according to expert testimony, be safe ly carried on if conducted with due care; Judson v. Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146.
In the absence of a contract between the parties, the burden of proof of negligence is on the plaintiff, and if the "evidence is equally consistent with the existence or non-existence of negligence, it is not com petent to the judge to leave the matter to the jury;" 11 C. B. N. S. 588 ; but the rule of the burden of proof is modified when there is a relation of contract between the parties; Poll. Torts 416; as in cases of com mon-carriers, or where the thing which was the cause of the mischief was "under the management of the defendant or his serv ants, and the accident was such as in the ordinary course of things does not happen, if those who have the management use proper care ;" 3 H. & C. 596.
In some classes of cases the mere proof of the accident constitutes sufficient prima facie proof of defendant's negligence. See RES IPSA LOQUITUB.
As a general rule this liability cannot be avoided by stipulation; thus, a common car rier will not be permitted to contract for immunity from the results of its own neg ligence or that of its agents; Graham v.
Davis, 4 Ohio St. 362, 62 Am. Dec. 285 ; Grogan v. Exp. Co., 114 Pa. 523, 7 Atl. 134, 60 Am. Rep. 360; Bartlett v. R. Co., 94 Ind. 281; Railway Co. v. Sowell, 90 Tenn. 17, 15 S. W. 837; Erie R. Co. v. Wilcox, 84 Ill. 239, 25 Am. Rep. 451; School Dist. v. R. Co., 102 Mass. 552, 3 Am. Rep. 502; Southern Pac. R. Co. v. Maddox, 75 Tex. 300, 12 S. W. 815 ; this may be considered as the rule generally followed in this country, in which the leading case is New York C. R. Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 627, where the authorities are collected by Bradley, J. In England, however, the courts seem to find no conclusive objection to sus taining such contracts when specially made; L. R. 10 Q. B. 212 ; 23 U. C. Q. B. 600; and in New York, though the contracts are upheld, it is only when expressed in clear and specific language and not by mere gen eral words in the usual printed bills of lad ing or receipts; Knell v. S. S. Co., 1 Jones & S. (N. Y.) 423; Mynard v. R. Co., 71 N. Y. 180, 27 Am. Rep. 28. So the liability may be limited in consideration of a reduced rate of transportation; Richmond & D. R. Co. v. Payne, 86 Va. 481, 10 S. E. 749, 6 L. R. A. 849; L. R. 8 H. L. 703 ; L. R. 10 Q. B. D. 250; or by special contract, for all negli gence except gross ; Chicago, B. & N. R. Co. v. Hawk, 42 Ill. App. 322. Such a contract, made in New York, was enforced in an ac tion in Pennsylvania according to the law of New York ; Eorepaugh v. R. Co., 128 Pa. 217, 18 Atl. 503, 5 L. R. A. 508, 15 Ain. St. Rep. 672. See COMMON CARRIERS.
The contract of an express messenger, whereby the railroad upon which he travels as messenger is exonerated from liability for damages to him resulting from its neg ligence, is not void as against public policy; Baltimore & 0. S. W. R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; likewise the contract of a sleeping car por ter ; Chicago, R. I. & P. R. Co. v. Moiler, 215 Ill. 525, 74 N. E. 705, 1 L. It A. (N. S.) 674, 106 Am. St. Rep. 187, 3 Ann. Cas. 42. A contract between a railroad and a part nership, to whom it has leased a strip of land near its track for the purpose of erect, ing a warehouse, which exonerates the rail road from liability for damage resulting from fire from locomotives, is not void as against public policy even though there is a state statute holding railroads liable for such damage; Hartford F. Ins. Co. v. R. Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84.