such burglary was occasioned or was not prevented by reason of some negligence or omission of due care on the part of the warehouseman.

The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to deliver them, or account for such non-delivery, or, to use the language of Sutherland, J., in Schmidt v. Blood, where "there is a total default in delivering or accounting for the goods" (9 Wend. 268), this is to be treated as prima facie evidence of negli gence. (Fairfax v. N. Y. C. & II. R. R. R. Co., 67 N. Y. 11; Steers v. Liverpool Steamship Co., 57 id. 1; Burnell v. N. Y. C. R. R. Co., 45 id. 184.) This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them.

But where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facie evidence of his want of care, and the court will not assume in the absence of proof on the point that such fire or theft was the result of his negligence. (Lamb v. Camden & Amboy R. R. Co., 46 N. Y. 271, and cases there cited; Schmidt v. Blood, 9 Wend. 268; Platt v. Hibbard, 7 Cow. 500, n.) Grover, J., in 46 N. Y. supra, says, in delivering the opinion of the court, the question is "whether the defendant was bound to go further (ie. than showing the loss by fire) and show that it and its employees were free from negligence in the origin and progress of the fire, or whether it was incumbent upon the plaintiffs to maintain the action to prove that the fire causing the loss resulted from such negligence." And he proceeds to show that the charge of the judge who tried the cause gave to the jury the former instruction and that this was contrary to the law and erroneous. So Sutherland, J., in 9 Wend. supra, in the case of a warehouseman, says the onus of showing the negligence

seems to be upon the plaintiff unless there is a total default in delivery or accounting for the goods." And he cites a note of Judge Cowen to his report of Platt v. Hibbard, 7 Cow. 500, in which that very learned author says, criticising and questioning a charge of the circuit judge, "the distinction would seem to be that when there is a total default to deliver the goods bailed on demand, the onus of accounting for the default lies with the bailee; otherwise he shall be deemed to have converted the goods to his own use, and trover will lie (Anony mous, 2 Salk. 655); but when he has shown a loss, or where the goods are injured, the law will not intend negligence. The onus is then shifted upon the plaintiff."

It will be seen, as the result of these authorities, that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging, as an excuse, that they have been stolen or burned. These facts must appear or be proved with reasonable certainty. Nor do we concur in the view that there is in these cases any real "shifting" of the burden of proof. The warehouseman, in the absence of bad faith, is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman, and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but if, either in the course. of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.

Applying these principles to the present case, we must hold that when it appeared, as it did, that the goods were taken from the defendants' warehouse by a burglarious entry thereof, the plaintiffs should have shown that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted or contributed to cause or permit that burglary.

Examining the case under this rule of law we find that there was no proof tending to show when the warehouse was entered, whether in the night or daytime. It was, it seems, during a large portion of every twenty-four hours in the custody of the government janitors. It does not appear nor is it found whether access to the warehouse was gained through the scuttle or roof or by the ordinary entrances, whether the thieves got in by stealth and broke out through the roof or broke in through the roof. The evidence was clear that access to the roof was gained from an adjoining tenement house by means of a burglar's ladder, and a blank brick wall rising some twenty or twenty-five feet above the roof of the tenement house was scaled by means of this ladder; that the goods were removed from the third story of the warehouse where they were stored, the packages being carefully replaced so as to delay observation and discovery, and the marks removed from the goods in an upper room of the tenement house, hired probably by the thieves for the purpose.

The plaintiffs rested their case upon the pleadings, without proving any demand or refusal, admitting a "robbery," but not attempting to show any negligence in the defendant.

The motion for dismissal of the complaint then made by the defendant on the ground that no negligence had been shown, that there was no evidence of refusal to deliver, and the burden was still upon the plaintiffs, should, I think, have been granted; and its denial may perhaps explain the subsequent finding by the referees.

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Judgment reversed.1

1 Cf. Stokes v. Saltonstall, 13 Pet. 181, holding that the facts that a stagecoach was upset and plaintiff, a passenger, was injured, make out a prima facie case of negligence.

At common law one injured in person or property by a common carrier may sue on contract or in tort at his option. (B. C. P. Ry. Co. v. Kemp, 61 Md. 619; 48 Am. R. 134; Nevin v. P. &c. Co., 106 Ill. 222.) Under the New York code an action for damages against a common carrier, whether in form ex contractu or ex delicto, is barred after three years. (Webber v. H. &c. Ry., 109 N. Y. 311; 15 N. Y. S. R. 262; 16 N. E. 358; Marson v. D. L. & W. Ry. Co., 112 N. Y. 559; 20 N. E. 544. Cf. Flemming v. M. S. & L. Ry., 4 Q. B. D. 81, and Pollock on Torts, p. 437.)

SEYBOLT V. THE N. Y. L. E. & W. Ry. Co.

(95 N. Y. 562.-1884.)

Lewis E. Carr for appellant.

J. F. Seybolt for respondent.

RUGER, Ch. J. The cause of the accident, whereby the plaintiff's intestate lost his life, was left in some doubt by the testimony, and was altogether a matter of inference for the jury to draw from the circumstances appearing in evidence relating thereto.

No direct evidence was given on the subject by either party, the defendant seeking to establish the inference that it was occasioned by the breaking of an axle by proving from the evidence of its employees and others that the axle of the engine was found broken after the accident, and that its switches were properly set; that the road-bed and machinery of the train were of sound material, in good order and condition, and that the train was carefully and skilfully managed; and the plaintiff, from the nature of the accident, the results produced and the circumstances surrounding it, that it was occasioned by the negligence of the defendant's servants in setting the switches at the place of accident, whereby the train was diverted from the main track and brought in collision with obstructions on a side track, which produced the injury complained of. It was undisputed in the case that the casualty occurred in the immediate vicinity of the switch; that the cars left the main track, following either upon or in the general line of the side track leading from the switch; that they came in collision with cars standing on the side track at a distance of several hundred feet from the switch, and that the proximate cause of the destruction of the mail. car was the collision between the train and the cars standing on the side track. These circumstances afforded a strong presumption that the train was diverted from the main track by some disarrangement of the switch. No adequate cause for the various circumstances appeared in evidence except that afforded by the presumption of a misplaced switch.

Notwithstanding the positive evidence of witnesses to the effect that at different times, during the few hours preceding this accident, they had examined these switches and found them properly set and locked, there was sufficient evidence derivable from the undisputed facts, and the conflicting statements as to the situation of the connecting rails of the side track after the accident, to afford a support for the inference, probably drawn by the jury, that the accident was caused by a misplacement of one or both of the switches. There was evidence tending to show that the mail car was thrown from the side track a distance from thirty to fifty feet down an embankment, and was found to be lying nearly abreast of the engine, at right angles with it, and on fire, immediately after the accident occurred. The situation, not only of this car, but that of the baggage and smoking cars attached to it, was such that it could not probably have been produced except by a collision between a train moving with considerable velocity upon a clear track and a body offering great resistance.

From these facts the jury might very well have concluded that the evidence which attempted to account for the accident, on the theory that the train left the track near the upper switch in consequence of a broken axle, involving as it did the proposition that it must have run nearly four hundred feet over railroad ties and other obstructions before colliding with the cars standing on the side track, was quite improbable, and did not sufficiently account for the results disclosed by other undisputed evidence. There was evidence to support the finding of the jury upon the question of the defendant's negli gence, and we see no ground upon which to interfere with the conclusions reached.

At the close of the case the defendant requested an instruction to the jury that "the burden of proof is on the plaintiff to establish the negligence of the defendant. If there is a reasonable doubt on the whole evidence as to the negligence of the defendant, the verdict should be for the defendant." We think the court committed no error in refusing to charge as requested. While it is true, as a general proposition, that the burden of showing negligence on the part of the defendant occasioning an injury, rests in the first instance upon the