who sues in respect of personal injury which he alleges to have been occasioned by negligence, must prove the negligence on which he relies. But where the accident is the work of a moment and its origin and course incapable of being detected, the same exact proof of the fault which caused the injury is not required (McArthur v. Dominion Cartridge Co. (a) ) (186). It follows that where the inference, raised by the evidence, is one equally consistent with liability or non-liability, the plaintiff fails in his action, unless, as in the case of Harvey v. Ocean Accident Co. (b), he can call to his aid a presumption of law. In this case, which was a claim on a policy of insurance against death by accident, the tribunal of fact found the evidence so equally balanced that there was precisely the same weight of evidence in favour of death by accident as of suicide:---Held, that the presumption of law against crime entitled the plaintiff to recover on the policy. (a) [1905] A. C. 72; 74 L. J. P. C. 30; 91 L. T. 698; 21 T. L. R. 47. (b) L. R. Ir. [1905] 2 K. B. 1. Canadian Notes. Similarly, s. 15 of the Nova Scotia Act, R.S. N. S., 1900, c. 179, s. 15, provides that where it is material to show compliance with certain statutory provisions, in regard to mines or railways, passed for the purpose of preventing accidents to workmen, the onus of proving compliance or due diligence shall be upon the employer: see Appendix, p. 959. (186) In the McArthur Case the Judicial Committee reversed the decision of a majority of the Supreme Court of Canada, 31 S. C. R. 392. The Dominion Cartridge Co. v. Cairns, 28 S. C. R. 361, is a somewhat similar case. In Montreal Rolling Mills Co. v. Corcoran, 26 S. C. R. 595, it was laid down that there must be "weighty, concise, and consistent" presumption from facts proved. In Canadian Coloured Cotton Mills v. Kervin, 28 O. R. 73; 25 Önt. A. R. 36; 29 S. C. R. 478, no one saw the accident, and it could not be ascertained how it occurred, and the Court refused to assume that the absence of a fence or guard around the machinery was the cause. This case was distinguished in Wilson v. Lincoln Paper Mills Manufacturing Co., 9 O. L. R. 119; and see Griffiths v. Hamilton Electric Light and Power Co., 6 O. L. R. 296; Billing v. Semmens, 7 O. L. R. 340, affirmed 8 O. L. R. 540. In Asbestos and Asbestic Co. v. Durand, Q. R. 19 S. C. 39; 30 S. C. R. 285, the defendants' accumulation of dynamite was in the circumstances held to be negligence and, although the actual cause of the explosion was uncertain, the defendants were held liable. See also Grand Î'runk Rail. Co. v. Hainer, 36 S. C. R. 180; 5 C. Ry. C. 59. The proof of the happening of an occurrence causing injury, usually spoken of as the accident, is no evidence that it was occasioned by negligence (187). This is the rule. The exception to it is expressed by the maxim "Res ipsa loquitur," and signifies that the occurrence or accident may be of such a character as to imply negligence. In other words, the nature of an accident may be such that, by proving its occurrence, the plaintiff thereby proves prima facie that it was occasioned by negligence. This is no exception to the rule that "he who affirms must prove." The onus of showing negligence in such a case is still on the plaintiff, and he satisfies this onus by proving an occurrence so pregnant with inference of negligence that in law it is considered to amount to primâ facie proof of it. Test as to Application of Doctrine.-What, then, is the test to be applied in deciding the question whether or not the accident itself is evidence of negligence? whether the principle of the maxim "Res ipsa loquitur” may be relied upon? The answer to this inquiry has been well given in the following words: "If the thing causing the mischief is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care" (c) (188). This is (c) Judgment of ERLE, C.J., in Scott v. London Dock Co., 3 H. & C. 596; 34 L. J. Exch. 220; 13 L. T. (N.S.) 148; 13 W. R. 410. Canadian Notes. (187) Canada Paint Co. v. Trainor, 28 S. C. R. 352; Ross v. Cross, 17 Ont. A. R. 29. (188) In Sangster v. T. Eaton Co., 25 O. R. 78; 21 Ont. A. R. 624, affirmed 24 S. C. R. 708, the unexplained fall of a mirror standing against the wall of a shop was held sufficient evidence of negligence to justify the case being submitted to the jury. And see Great Western Rail. v. Braid, 1 Moo. P. C. (N.S.) 101; Quebec and Lake St. John Rail. v. Julien, 37 S. C. R. 632; 6 C. Ry. C. 54; Bisnaw v. Shields, 7 O. L. R. 210; Crawford v. Upper, 16 Ont. A. R. 440; and cases infra. the rule to be applied. What is the right inference to be drawn from particular facts when this rule is applied is itself a question of fact, and with regard to this different views often have been, and must necessarily be, taken by different minds. A necessary corollary to the rule is, that if the right inference to be drawn from the facts is one equally consistent with the absence as with the existence of negligence, the doctrine of "Res ipsa loquitur" does not apply (d) (189). Early Cases on this Point. The first case, so far as we are aware, in which it was laid down that proof of the occurrence of an accident might be itself proof that it was due to negligence, was the case of Skinner v. London, Brighton, etc., Rail. Co. (e). That case was decided in the year 1850, and was an action arising out of a collision between two trains belonging to the defendant company. POLLOCK, C.B., in charging the jury, told them in direct words that the fact of the accident having occurred was of itself prima facie evidence of negligence on the part of the defendants. This direction was upheld by the full court. In 1863 it was decided, in Byrne v. Boadle (f), that (d) See Cotton v. Wood, 8 C. B. (N.S.) 568; Hammack v. White, 11 C. B. (N.S.) 588; 31 L. J. C. P. 129; 5 L. T. (N.S.) 676; Manzoni v. Douglas, 6 Q. B. D. 145; Davey v. London and South Western Rail. Co., 11 Q. B. D. 213; 53 L. J. Q. B. 58; [C. A.] 12 Q. B. D. 70. (e) 5 Exch. 787. The case of Carpue v. London, Brighton, etc., Rail. Co. relied on in this case, is hardly an authority on the point, for direct evidence of negligence was there given by the plaintiff, and the question of res ipsa loquitur was abandoned on the appeal. (f) 2 H. & C. 722; 33 L. J. Exch. 13; 9 L. T. (N.S.) 450; 12 W. R. 279. Canadian Notes. (189) Young v. Owen Sound Dredge Co., 27 Ont. A. R. 649. In Farmer v. Grand Trunk Rail., 21 O. R. 299, the absence of stakes in the sockets of a lumber car allowed the lumber to project and, it was alleged, caused the death of an employee engaged in coupling cars; but, as there was no direct evidence to show how the accident happened and its cause was a matter for conjecture, the action was held not maintainable. And see Canadian Pacific Rail. v. Smith, 34 N. S. R. 22; 31 S. C. R. 367; 1 C. Ry. C. 231, 255; Brunell v. Canadian Pacific Rail., 15 O. R. 375. the falling of a barrel of flour from the defendant's warehouse above his shop was primâ facie evidence of negligence on the part of the defendant or his servants, and as no other evidence was given, that it was sufficient to sustain a verdict for the plaintiff, who was injured by the falling barrel. Following this, in the year 1865, came the well-known case of Scott v. London Dock Co. (g), where the Court of Exchequer Chamber by a majority held that the unexplained fall of bags of sugar, which were being hoisted into one of the defendant's warehouses, was primâ facie evidence of negligence against the company, and laid down the rule to be applied in such cases as before stated. The unexplained falling of a brick from a railway bridge belonging to the defendants has also been held to be itself primâ facie evidence of negligence against the defendants (h), and the same rule has been applied to the sudden, and unusual, and unexplained stopping of a train (i) (190). On the other hand, it was held by the Judicial Committee of the Privy Council that the sudden breaking of the ringbolt of a carriage, by which the front wheels (g) Ante, p. 219. (h) Kearney v. London, Brighton, etc., Rail. Co., L. R. 5 C. P. 411; 39 L. J. Q. B. 200; 22 L. T. (N.S.) 886; 18 W. R. 1000; in Exchequer Chamber, L. R. 6 Q. B. 759; 40 L. J. Q. B. 285; 24 L. T. (N.S.) 913. In giving judgment in this case, COCKBURN, C.J., says: "This is a case where the principle of res ipsa loquitur applies, although it is certainly as weak a case as can well be conceived, in which that maxim could be taken to apply." (i) Angus v. London, Tilbury and Southend Rail. Co., 22 T. L. R. 222. Canadian Notes. (190) In O'Brien v. Michigan Central Rail., 19 O. R. 345, the unexplained fall of a lump of coal from the tender of a passing locomotive was held to justify a finding of negligence; and see Bisnaw v. Shields, 7 O. L. R. 210. In Corner v. Byrd, M. L. R. 2 Q. B. 262, the snapping of a hawser was held to raise a presumption either that it was insufficient for its purpose, or that the ship was unskilfully handled. In Cataraqui Bridge Co. v. Holcomb, 21 U. C. R. 273, the fact that after a storm a steamer was found drifting against a bridge was considered sufficient primâ facie proof of negligence. became separated from the hinder wheels, was not even prima facie evidence of negligence (k). In giving judgment in this case, Lord CHELMSFORD refers to Scott v. London Dock Co., supra, and distinguishes it from the one under consideration thus: "In Scott v. London Dock Co. there was the strongest prima facie presumption of negligence, because it is not in the ordinary course of things that loaded bags should fall out of a warehouse on a person below. But this case is very different. There is nothing more usual than for accidents to happen in driving without any want of care or skill on the part of the driver, and therefore no presumption of negligence has been raised " (191). In the case of Hanson v. Lancashire and Yorkshire Rail. Co. (1), which was a case of a chain breaking, there being slight evidence of a latent defect in it, the case was left to the jury, who found for the defendants. Upon appeal an opinion was expressed that the mere fact of a chain breaking was not even primâ facie evidence of negligence. This opinion seems to have been countenanced by A. L. SMITH, J., in Batchelor v. Fortescue (m), who, discussing this principle, in his judgment says, “We think the fact of the chain breaking, coupled with the fact that it was somewhat worn, was some evidence to go to the jury." This almost amounts to a pronouncement that the breaking of the chain by itself would not have afforded any evidence of negligence (n) (192). (k) Moffat v. Bateman, L. R. 3 P. C. 115; 22 L. T. (N.S.) 140. (1) 20 W. R. 297. (m) 11 Q. B. D. 474, ante, p. 56. (n) The author knows of one case brought under the Employers' Liability Act, where the plaintiff only proved that a chain which was being used to draw up a set of goods out of the hold of a ship suddenly broke, and the goods fell upon him and injured him. The county court judge non-suited, and there was no appeal. Canadian Notes. (191) In Crawford v. Upper, 16 Ont. A. R. 440, the running away of a horse attached to a sleigh was deemed prima facie evidence of negligence. (192) In Badcock v. Freeman, 21 Ont. A. R. 633, there was no direct |