In Christie v. Griggs, 2 Camp., 69, Sir James Mansfield, chief justice, said: "I think the plaintiff has made a prima facie case by proving his going in the coach, the accident, and the damage he has suffered. When the breaking down or overturning of the coach is proved, negligence on the part of the owner is implied."

This case is cited with approbation by the supreme court in Stokes v. Saltonstall, supra; in Railroad Company v. Pollard, 22 Wall., 341. The case of Stokes . Saltonstall, 13 Pet., 181, was approved, and it was declared that in a suit against a railroad company for an injury to a passenger, if it appeared that the passenger was in the exercise of that degree of care which might be reasonably expected from a person in his situation, and injuries occur to him, this is prima facie evidence of the carrier's liability.

In the present case, where the injury was caused by the explosion of the boiler of the steamboat, while the same was in charge of the servants of the boat, there can be no question that the explosion itself makes out a prima facie case of negligence, and, unless this presumption is rebutted, entitles the libelant to recover.

The question for decision upon the facts is, therefore, has the respondent rebutted this presumption? The proof shows that the boilers of the Reliance and her machinery were in good order. The boilers had been recently repaired and had been inspected by one of the government inspectors at Savannah, and had been cleaned out a short time before. At the time of the explosion there were no defects apparent in the boat, her boilers or machinery.

The explosion must, therefore, have been caused either by some latent defect which the closest examination could not discover, or by the negligence of those in charge of the boilers and machinery, and it is incumbent on the respondent to show that the disaster was caused by the former and not by the latter.

There is no direct proof whatever that there was any defect in the boiler or machinery of the boat to which the explosion could be attributed. The respondent, however, seeks to draw the inference that there was such defect from the proof tending to show the good character of the engineer for sobriety, skill and attention to his duties, and from the fact that just before the explosion he was at his post apparently attending to his duties; but there is evidence on the record tending to rebut this proof of the respondent. It is shown that the engineer was not always sober, and there is evidence tending to show that the glass gauge was relied on to ascertain the height of water in the boilers, and that the water-gauge cocks were not used for that purpose. This, according to the evidence of the government inspector, would be negligence, because a glass gauge is likely to choke up and deceive the engineer.

But the fact which, to my mind, rebuts the inference to be drawn from the alleged good character of the engineer, and his attention to his duties, is found in the condition of that part of the boiler which was left in the boat after the explosion. The government inspector says, in reference to this fragment of the boiler: "I examined it with Mr. Henderson. We had it cut, but did not cut the worst part of it, as we desired to keep it for further information. The piece we had cut was hard and brittle and it broke under the shears; its tensile strength had been taken away to the extent of about five or six thousand pounds by being heated and chilled; it had been burned by fire."

This witness adds: "It is an engineer's duty to prevent the burning of the boilers, and the presumption is that when they do burn it is negligence." On

this point Sherman, the second engineer, says: "I would consider it great carelessness to let your boiler burn; it could not happen without great carelessness."

The respondent claims that the piece of the boiler found on the deck might have been burned after the explosion by the fire left in the furnace. This is mere conjecture, without any evidence to support it, and the result of the explosion, as disclosed by the evidence, renders such a theory extremely improbable. This evidence makes it perfectly clear that the boilers of the boat were not in a sound condition at the time of that explosion, and that their unsafe condition was due to the carelessness of the engineers, or one of them. It may have been owing to the carelessness of Moultrie, the engineer on duty at the time of the explosion, or of the second engineer, Sherman, who admitted after the disaster that it was not his habit to try the water-gauge cocks, and who for this negligence has had his license revoked.

It is also in evidence that the boat very frequently carried more passengers than she was allowed to. With all this testimony touching the management of the boat by her engineers and the condition of the boilers at the time of the explosion, we are asked to find that the explosion was caused by some hidden defect in the material out of which the boilers were constructed, and not to defects caused by carelessness and bad management. No hidden defect is shown to exist, and we are asked to infer it from the good character of the engineers. The facts prove that the engineers were careless and negligent, and the result of that negligence is shown by the condition of the boilers at the time of the explosion. The natural and almost unavoidable inference is that the explosion was the result of the bad treatment of the boilers by the engineers, and not the result of some concealed flaw.

In my judgment the presumption of negligence arising from the fact of the explosion is not removed, but is greatly strengthened, by the evidence in the case, and the libelant must have a decree for the damage that he has sustained.

Upon the facts, as disclosed by the evidence, I estimate his damage at $5,000, and direct a decree in his favor against the boat for that sum, and costs, both in this court and in the district court.

FLINT v. THE NORWICH & NEW YORK TRANSPORTATION COMPANY.

(Circuit Court for Connecticut: 6 Blatchford, 158-165. 1868.)

Charge by SHIPMAN, J.

STATEMENT OF FACTS.-There are a number of facts touching this interesting and important case which is now finally to be submitted to you, about which there is no serious dispute. The plaintiff, a physician, residing in Boston, left his home for New York on the 6th of June, 1864. Before leaving he purchased a through ticket, called a coupon ticket, by which he became entittled to a passage from Boston to Worcester over the Boston & Worcester Railroad; from Worcester to Norwich over the Norwich & Worcester Railroad; from Norwich to New London over the Northern Railroad; and from New London to New York, through the Sound, on one of the defendant's passenger boats. He passed safely over the route from Boston to New London, where he arrived not far from half-past 10 or 11 o'clock in the evening, left the cars and proceeded on board of the defendant's boat, the steamer City of Boston, which was then lying at the dock with steam up, ready to start as

soon as the passengers by the train, with their luggage, and some express freight should be taken on board. The plaintiff, with other passengers, one of whom was a lady under his charge, went upon the main deck of the steamer, through her after starboard gangway. He proceeded with the lady through or along with a crowd of passengers, passed up the stairs to the upper saloon, and after some little time, leaving the lady, returned to the main deck and went to the ticket-office to receive his state-room key to which his ticket entitled him. He obtained the key and proceeded to return from the ticketoffice to the upper saloon by the proper route. When he had gone a short distance from the ticket-office and before he had reached the stairs, a loaded musket fell from the hands of a soldier or non-commissioned officer, or was thrown down, and was discharged as it fell, and the ball passed through the foot of the plaintiff, just back of the toes, shattering the bones and causing a dangerous wound from which he suffered severely for a long time. Finally, to save his life, as advised by his surgeons, he was compelled to have his foot amputated. He suffered for a period of nearly three months, and incurred expenses in a city distant from his home. His activity and capacity for business and professional usefulness have been more or less permanently impaired. He claims that this injury, with all its serious consequences, was the result of a breach of duty on the part of the defendants, and to recover proper damages therefor he has brought this suit. The burden of proof is on the plaintiff, and it is now for you to say whether or not, on the whole evidence, the claim of the plaintiff is well founded. The rules of law which you are to apply as tests to this evidence I will refer to particularly hereafter.

§ 194. The duty of a common carrier of persons for hire to maintain order on his vessel and protect passengers from violence at the hands of other persons on the vessel.

As I have already stated, before the arrival of the train which brought the plaintiff to New London, the steamboat was at the dock, with steam up, ready to start, when the passengers, the luggage and the express freight from the train should all be on board. She had been lying there for some time. Between 9 and 10 o'clock, an hour or more before the train arrived, a detachment of United States soldiers, from Fort Trumbull, about sixty-three in number, with several non-commissioned, and two commissioned, officers, went on board, and were there when the train arrived. Some fourteen to eighteen of these soldiers were armed with muskets, loaded and capped, and furnished with bayonets. They were detailed as guard over the rest, who were unarmed. Witnesses called by the defense state that this detachment was placed on the main deck, forward of the engine-room; that armed sentries were stationed to keep them there; that a sentry was placed on each side of the engine-room to prevent them from going aft; and that two sentries were stationed at the forward starboard gangway, and one at the head of the stairway leading from the forward part of the main deck to the cabin below. Some of these witnesses say that a sentinel was also placed at each of the two ladders which led from the forward part of the main deck to the saloon deck above. This was substantially the condition of things on the boat down to, or near to, the time when the train which brought the plaintiff arrived. On this train came a large number of passengers, among whom were about one hundred and fifty soldiers, in a detachment, under the command of officers, and who were ultimately marched on board at the forward gangway. By the same train came also about a dozen or twenty soldiers, traveling, apparently, as ordinary pas

sengers. These also went on board, but whether by the forward or the after gangway it may be proper for you to consider in deciding upon the conflicting evidence touching the condition of things on the after part of the deck, where, and at the time, the passengers were coming on board and getting their tickets and state-room keys. The train having arrived, the plaintiff proceeded on board by the proper entrance. Here the duty of the defendants toward him as a passenger commenced. They undertook to transport him for hire, and were bound to secure him a safe passage so far as that could be done by the exercise of due care on their part. This was a duty imposed upon them by their contract and by law. The precise rule of duty to which they are to be held and which you are to apply to the evidence in deciding whether or not they are liable in this action is this: The defendants were bound to exercise the utmost vigilance and care in maintaining order and guarding the passengers against violence, from whatsoever source arising, which might reasonably be anticipated or naturally be expected to occur in view of all the circumstances and of the number and character of the persons on board. Now, the plaintiff has testified, and has called a number of witnesses who, he claims, substantially concur to the same points, that, immediately upon stepping upon the boat, he found himself in a dense crowd of persons, many of whom, like himself, were civilian passengers from the train, but among whom were a number of soldiers, some of them armed, who were boisterous, some evidently intoxicated, quarrelsome, profane, and exhibiting more or less disposition to rudeness and violence by scuffling and jostling one another and the civilians. The plaintiff claims that the evidence touching this part of the case proves that this disorder and uproar continued for from fifteen minutes to half an hour, until he returned from the upper saloon to seek his key, and until the discharge of the gun by which he was wounded; that during all this time no efforts were made by the servants of the defendants to quell this disturbance, and that it finally terminated in this injury to him. Now, if all these facts are, in your judgment, substantially proved, you will have a right to infer negligence on the part of the defendants and hold them liable. If disorderly men, armed with loaded muskets, were in the space through which passengers. had to pass, it was the duty of the defendants to see that they were removed before the passengers came on board, or that the latter were notified of the danger, or that adequate protection was furnished. If armed and boisterous and quarrelsome soldiers rushed into the space referred to after the passengers had begun to come on board, and produced and continued an uproar there, it was the duty of the defendants, through the officers and hands of their boat, to make every effort to quell the disturbance and protect their passengers from violence and danger, and to call upon the military officers to enforce discipline.

But the defendants give a very different version of the events of that night. They claim to have proved by their witnesses that the space where the passengers from the train came on board was clear, at least of soldiers, when they arrived; that there was no soldier, armed or unarmed, upon that part of the boat at that time; and that if any soldiers came in with or among the passengers as they were pressing on to the boat, they were few in number, unarmed, and traveling as ordinary passengers, and behaved as peaceably as the civilians did. They further claim that they have shown by their witnesses that soon after the passengers got on board one of the unarmed recruits from Fort Trumbull undertook to pass the sentry on the port side of the engine and was

repulsed; that he repeated the attempt and again failed; that he finally returned with several of his companions and overpowered the sentinel; that then he or they rushed aft, near to or into the space where the passengers came on board; that several of the guards followed, when a scuffle ensued near the saloon stairs between the insubordinate recruit or recruits and the pursuing guards; and that it was in this brief, or, as the defendants claim, momentary, struggle that the gun by which the plaintiff was shot was dropped or thrown down.

Now, it is for you to say which of these versions is correct. As I have already said, if disorderly soldiers, armed with loaded muskets, occupied the space where the passengers came upon the deck and no notice was given to the passengers of that fact, so that they might avoid the danger; or if such soldiers rushed in upon that space, while the other passengers were coming on board and securing their keys or tickets, and conducted in a quarrelsome and disorderly manner for a considerable time, during which the plaintiff was shot, without any effort on the part of the officers or crew of the defendants to suppress the disorder and protect the passengers or induce the military officers to do so, and the plaintiff was injured in consequence, then you have a right to hold the defendants liable. If, on the other hand, the version given by the defendants' witnesses is the true one, then you will proceed to another inquiry, that is, whether, in this aspect of the case, the defendants did exercise their utmost vigilance and care in maintaining order and guarding the passengers against violence, from whatever source arising, which might reasonably be expected to occur, in view of all the circumstances and the number and character of the persons on board. If they did this, or if it was done by the military, the defendants are not liable. If such vigilance and care were not exercised, and the plaintiff was injured in consequence, then the defendants are liable, and your verdict must be for the plaintiff.

§ 195. It is no excuse for a carrier who has received the person injured voluntarily that he had been previously compelled to receive the party that injured him. And here it is proper that I should notice a circumstance set up by the defendants. They say that they had no alternative but to take these soldiers from Fort Trumbull who caused, as they assert, this disturbance and this injury to the plaintiff; and that they were compelled to take them on this boat by military coercion. You may assume that fact as proved, but this will not vary the liability of the defendants under the present circumstances. They took the plaintiff as a passenger voluntarily after this detachment was on board, and without notice to him; and their obligations to him were just the same whether they took the Fort Trumbull troops voluntarily or under compulsion. Those troops were on board long before the plaintiff was; the defendants knew the fact, no notice was given to the plaintiff, and they were bound to take such precautions for the protection of the civilian passengers as were demanded by the rule I have laid down. They say that they did take them, or see that they were taken; and that the presence of the armed sentinels at the points stated by the witnesses, to keep the soldiers in their proper place, was all that the highest vigilance and prudence required. The guard was not under their command, and the only apparent additional precautions that the defendants could have taken that occur to me (you will say whether they could have taken others) would have been to apply to the military officers to have the sentries increased in number, or to place men, officers of the boat, or hands under their own control, at the passages, to support the armed