Where a passenger was injured by the collision of the car in which she was riding with a cable car of an independent railway, it was held that as to the railway company, which was transporting plaintiff, the acci dent created a presumption of negligence, but that as to the line operating the other car, a presumption of negligence did not arise ; Loudoun v. R. Co., 162 N. Y. 386, 56 N. E. 988.
Where a passenger in an electric car be came alarmed at the sight of flame shooting from the controller-box and received an elec tric shock as she stepped over the metal door sill in an attempt to escape from the car, it was held that there was sufficient evidence of defendant's negligence ; Buckbee v. R. Co., 64 App. Div. 360, 72 N. Y. Supp. 217. So al so where plaintiff received an electric shock while using a telephone during a thunder storm ; Rocap v. Telephone Co., 19 Pa. Dist. R. 291; and where a patient was injured while having an X-ray photograph taken ; Jones v. Tel. & Tel. Co., 118 Minn. 217, 136 N. W. 741, 40 L. R. A. (N. S.) 485.
This doctrine has a narrower application between master and servant than between carrier and passenger, for the carrier owes a higher degree of duty to a passenger than a master to a servant. A cause of action against a railroad.for injuries to a brakeman by the derailment of a train is not establish ed by evidence that one of the trucks under the car was defective, without showing which one ; Henson v. R. Co., 194 N. Y. 205, 87 N. E. 85, 19 L. R. A. (N. S.) 790. The applica tion of the rule arises from the nature of the occurrence and not from the relation of the parties ; Klebe v. Distilling Co., 207 Mo. 480, 105 S. W. 1057, 13 L. R. A. (N. S.) 140.
Allegations of specific omissions of duty do not deprive the plaintiff of his right to rely upon the doctrine if the case otherwise is a proper one for its application; Kluska v. Yeomans, 54 Wash. 465, 103 Pac. 819, 132 Am. St. Rep. 1121; McNeill v. R. Co., 130 N. C. 256, 41 S. E. 383 ; Dearden v. R. Co., 33 Utah, 147, 93 Pac. 271.
On the other hand, it has been held that the doctrine does not extend to cases in which acts of negligence specifically describ ed are the gist of the action ; Chicago Un ion Traction Co. v. Leonard, 126 Ill. App. 189 ; Todd v. Ry. Co., 126 Mo. App. 684, 105 S. W. 671. It is said that while it is inap plicable to support specific acts of negligence, yet if the plaintiff has made general tions of negligence as well as specific tions,.he may rely upon the doctrine to sup
port the general allegations ; North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899 ; Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087; but this rule was denied in Pierce v. R. Co., 22 Mont. 445, 56 Pac. 867 ; it was also said that the plaintiff, al though alleging a specific act of negligence, may nevertheless rely upon the doctrine to establish the negligence of the defendant in the respect alleged ; Palmer Brick Co. v. Che nall, 119 Ga. 842, 47 S. E. 239. An unsuccess ful attempt to prove by direct evidence the precise cause of an accident does not prevent the plaintiff from relying upon the presump tion applicable to it; Sullivan v. Rowe, 194 Mass. 500, 80 N. E. 459 ; McNamara v. R. Co., 202 Mass. 491, 89 N. E. 131.
Where there are general allegations of negligence and these are followed by allega tions of specific omissions of duty, the gen eral allegations are to be deemed explained, limited and -controlled by the special allega tions. In many cases where the doctrine of reit ipsa Zoquitur is inapplicable, this rule is invoked to prevent a recovery for acts of negligence not specifically pleaded ; Walters v. R. Co., 48 Wash. 233, 93 Pac. 419, 24 L. R. A. (N. S.) 788.
The doctrine means that the facts of the occurrence warrant an inference of gence, not that they compel such an infer ence. It does not shift the burden of proof, nor does it convert the defendant's general issue into an affirmative defence. When all the evidence is in, it is for the jury to de termine whether the preponderance is with the plaintiff ; Sweeney v. Erving, 228 U. S. 233, 33 Sup. Gt. 416, 57 L. Ed. 815. Whether the defendant introduces evidence or not, the plaintiff is not entitled to a verdict un less he satisfies the jury by the preponder ance of the evidence that his injuries were attributable to the defendant's negligence ; Stewart v. Carpet Co., 138 N. Q. 66, 50 S. E. 562.
Where contractual relations existed be tween the parties, and the plaintiff shows actual negligence or conditions so obviously dangerous as to admit of no other inference, the burden thus thrown on the defendant is not that of satisfactorily accounting for the accident, but of showing that he used due care ; Stearns v. Spinning Co., 184 Pa. 519, 39 Atl. 292, 39 L. R. A. 842, 63 Am. St. Rep. 807.
See Foley v. R. R., 193 Mass. 332, 79 N.