Injury to servant by a defective appliance. Donovan v. Harlan &c. Co., 2 Penn. (Del.) 190; Green v. Sansom, 41 Fla. 94; Railey v. Garbutt & Co., 112 Ga. 288; The Lydia M. Deering, 97 Fed. Rep. 971; Hodges v. Kimball, 104 id. 745; Terre Haute &c. R. Co. v. Seeper, 60 Ill. App. 194; Wabash R. Co. v. Farrell, 79 id. 508; Viles v. Stantes, 83 id. 398. Injury to servant by act of fellow servant. Myers, 83 Ill. App. 469. Chicago &c. R. Co. v. Fall of pin from passing tender striking plaintiff 10 feet distant. Cleveland &c. R. Co. v. Berry, 152 Ind. 607. Derailment of car. Brownfield v. Chicago &c. R. Co., 107 Iowa, 254; Smith v. Louisiana &c. R. Co., 49 La. Ann. 1325. Mere happening of the accident. Missouri &c. R. Co. v. Crowder, (Tex. Civ. App.) 55 S. W. Rep. 380; Pieschel v. Miner, 30 Misc. 301; Patton v. Texas &c. R. Co., 179 U. S. 658; Higgins v. Fanning, 195 Pa. St. 599. Mere breaking of a bolt in a hoisting machine, especially where it has been used some time with severer strains. Spille v. Wisconsin B. &c. Co., 105 Wis. 340. Giving way of a bracket of a staging. Brady v. Norcross, 172 Mass. 331. Defects were found to exist in the car after the accident. Oglesby v. Missouri &c. R. Co., 150 Mo. 137. Breaking of a coupling pin. Moore v. Jones, 15 Tex. Civ. App. 391. Where plaintiff was standing on a skidway safe from danger when the cars were properly loaded. Missouri &c. R. Co. v. Scarborough, (Tex. Civ. App.) 68 S. W. Rep. 196. Finding of an employé dead in a hole filled with water, in defendant's factory, Soverison v. Menasha &c. R. Co., 56 Wis. 338. Finding of body beside railroad tracks. Pa. St. 461; Bryant v. Illinois C. R. Co., Welsh v. Erie &c. R. Co., 181 (La.) 22 South. 799. Explosion on one's own premises, whereby injury occurred to a person or property on neighboring premises. Cosulich v. Standard Oil Co., 122 N. Y. 123. Losee v. Buchanan, 51 N. Y. 476, rev'g 61 Barb. 86; and distinguishing Hay v. The Cohoes Co., 2 N. Y. 159. Explosion of a boiler and injury to one repairing and testing it. Whitney Marble Co., 103 N. Y. 292. Olive v. Explosion of a boiler. Young v. Bransford, (Tenn.) 12 Lea, 232. Huff v. Austin, 46 Ohio St. 387; Spencer v. Campbell, 9 Watts. & S. 32; Kirby v. Delaware &c. C. Co., 20 App. Div. 473; Brunner v. Blaisdell. 170 Pa. St. 25; Baron v. Reading Iron Co., (Pa.) 51 Atl. Rep. 979; Vieth v. Hope &c. Co., (W. Va.) 41 S. E. Rep. 187. The mere keeping of explosives. Laflin &c. Co. v. Tearney, (Ill.) 21 N. E. 516. Explosion of dynamite on a car in defendant's yard. Walker v. C. R. I. & P. R. Co., 71 Iowa, 658. Unexplained explosion in a closet connected with a sewer. Kramer v. Fay, 4 Oh. N. P. 233. Bursting of a flywheel in satisfactory use for two years. Albany R. Co., 30 App. Div. 166; s. c. aff'd, 162 N. Y. 617. Piehl v. Injury to one on railroad track. Atchison &c. R. Co. v. McFarland, 2 Kan. App. 662; Anderson v. Union &c. R. Co., 8 Colo. App. 521; Tucker v. International &c. R. Co., (Tex. Civ. App.) 67 S. W. Rep. 914. Fall from car while in tunnel of an amusement railway. Benedick v. Potts, 88 Md. 52. III. Presumptions of and from Ownership. The fact that the defendant owned horses, that did injury by running away, is sufficient evidence, that those in charge of the horses were his servants, although at the time apparently engaged in the business of another whose name, as carrying on such business, was painted on the wagon. Norris v. Kohler, 41 N. Y. 42, rev'g nonsuit. Action for negligent use of a dredge against two parties; as to one the court said: Hinds v. Barton, 25 N. Y. 544, aff’g judg't for pl’ff, "There was certainly some evidence to go to the jury that he was as liable as the other defendant. Previous to this burning he and the other defendant had used and worked this dredge as partners, and at the time of the fire it was being used in the same way. No change in the relations of the defendant Richardson to the machine having been shown, the presumption would be, from the circumstances, that they continued the same at the time the plaintiff's buildings were consumed. This presumption is strengthened by the proof of one of the employés on the machine, working there, as I understand the case, at the time, that he was so employed by the defendant Richardson. This proof was sufficient to send the case to the jury." Plaintiff proved that the firm in which "K.," defendant's testator was a partner, was engaged in the brewery business; that the truck had the firm name on it; that many trucks of the same kind were employed in its business; that the truck was loaded with ale barrels at the time of the accident, and was engaged in delivering ale from the brewery of the firm. Held, the evidence was sufficient to authorize a finding that the truck belonged to defendant's firm, and that the driver was in its employ when the accident happened. Seaman v. Koehler, 122 N. Y. 646. In the absence of evidence the presumption is that the party in possession is the owner and that a sign "Flat to Let" was displayed through his authority. Fogarty v. Bogert, 43 App. Div. 43. The complaint alleged that the appellant-defendant was, at the time of plaintiff's injury, engaged in the brewing business in the city of New York, and owned trucks and horses, and employed drivers and assistants in and about its business. This was not denied by answer, and must, therefore, be taken as ad 66 mitted (Code Civ. Proc. sec. 522); and the admission, with the evidence that the truck from which the ale was being delivered at the time of the plaintiff's injury, bore the name of O'Reilly, Skelly & Fogarty," coupled with appellantdefendant's refusal to disprove its ownership thereof, and the employment of the men assisting in the delivery of the ale, on the trial, was sufficient to sustain a finding that such was the property of the appellant-defendant, and the men its servants and employés. (Seaman v. Koehler, 122 N. Y. 646; Wylde v. Northern R. Co., 53 id. 156.) Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. 302, 307. (N. Y. Com. Pleas.) An allegation that the wagon which caused the accident belonged to the defendants and was driven by one of their agents or servants is sufficient to charge them, although it does not otherwise allege that the servant was then engaged in the defendant's business. Birnbaum v. Lord, 7 Misc. 493. (New York Common Pleas.) Presumption as to an overflow of water from an upper floor arises against the party in exclusive possession thereof. Martin v. Coleman, 14 Misc. 505; Greco v. Bernheimer, 17 Misc. 592. It will not be presumed that a landlord in conveying the premises included a right of action then existing against a tenant. Wilder v. Moffatt, 33 Misc. 777. The plaintiff fell over a scantling one end of which rested upon a door-sill of the house of the defendant. To hold the defendant, proof was required that he placed the obstruction, or knew of it. Ackerly v. Sullivan, 34 La. Ann. 1156. Admission of ownership of a road together with the fact that all the engines bear its name, raised the presumption of ownership on the part of defendant. Bush v. Southern R. Co., 63 S. C. 96. Tiles negligently piled were in the control and custody of the defendant, but this did not prove that he owned the same. Palmer v. St. Albans, 56 Vt. 664. IV. Presumptions Respecting Personal Actions. There is a presumption: That all creatures are desirous of preserving life and safety. Morrison v. New York Central &c. R. Co., 63 N. Y. 643. See, Shaw v. Jewett &c. Co., 86 N. Y. 616; Warner v. N. Y. Cent. R. Co., 44 id. 471. Of disposition to avoid injury. N. Y. C. R. Co. v. State, 31 Md. 357. As to love of life and instinct of self preservation. Cleveland &c. R. Co. v. Rowan, 66 Pa. St. 393. Of accident and not intention in case of death from a bullet. Travelers' Ins. Co. v. Nicklas, 88 Md. 470. That lookout, stationed at the rear of a train, did his duty. Johnson v. Rio Grande &c. R. Co., 19 Utah, 77. That a traveler did stop, look and listen upon crossing a railroad track. Mynning v. Detroit R. Co., 64 Mich. 93. Chicago City R. Co. v. Fennimore, 99 Ill. App. 174; Atchison &c. R. Co., v. Hill, 57 Kan. 139; Louisville &c. R. Co. v. Clark, (Ky.) 49 S. W. Rep. 323; Chesapeake &c. R. Co. v. Steele, 84 Fed. Rep. 93; McVey v. Chesapeake &c. R. Co., 46 W. Va. 111. So as to a railroad employé. Texas &c. R. Co. v. Gentry, 163 U. S. 3.53. And is chargeable with knowledge of what he could have seen if he had looked. Herbert v. Southern R. Co., 121 Cal. 227; Lamport v. Lake Shore &c. R. Co., 142 Ind. 269. That servant of a railroad company exercised due care. Cameron v. Great Northern R. Co., 8 N. D. 124.* That the way is clear for passage at a crossing. Martin v. Baltimore dc. R. Co., 2 Marv. (Del.) 123. That habit of intoxication continued. Lane v. Missouri &c. R. Co., 132 Mo. 4. That openings left in a train at a crossing are for the convenience of the road and not for the public. Weldon v. Philadelphia &c. R. Co., (Del.) 43 Atl. Rep. 156. That servant knew of master's rules respecting his duties. Galveston &c. R. Co. v. Gormley, 91 Tex. 393. And of defects, it was his duty to look for. Pittsburg &c. R. Co. v. Ackworth, 10 Oh. C. C. 583. Of reasonableness in selection of a physician, who was a university graduate of 18 years' practice. Reed v. Detroit, 108 Mich. 224. That a party took a train with a lawful intent. Inness v. Boston &c. R. Co., 168 Mass. 433. There is no presumption: That a person is free from contributory negligence. Warner v. N. Y. C. R. Co., 44 N. Y. 465; McDonald v. L. I. R. Co., 116 id. 546, 550; Jencks v. Lehigh Valley R. Co., 33 App. Div. 635; Johnson v. Brooklyn &c. R. Co., 34 id. 271; Bell v. Clarion, (Ia.) 84 N. W. Rep. 962. That person exposed to danger will exercise care and prudence for his own safety, so as to alone justify a finding of absence of contributory negligence. Wiwiroski v. L. S. & M. S. R. Co., 124 N. Y. 420; Riordan v. Ocean Steamship Co., id. 655; Tucker v. N. Y. Cent. R. Co., 124 N. Y. 308. That a passenger was acting with care. Bonce v. Dubuque &c. S. Co., 53 Iowa, 278; Junction City v. Blades, 1 Kan. App. 85. That a boy riding on a car was a trespasser. Jackson v. St. Paul C. R. Co., 74 Minn. 48. *NOTE.-See also "Crossings," ante, p. 733. That a person was negligent. Reegan v. Western R. Co., 8 N. Y. 175; Lyndsay v. Conn. &c. R. Co., 27 Vt. 643; Texas &c. R. Co. v. Gentry, That servant was violating his instructions. Morbey v. Chicago &c. That servant knew the danger of work with which he was not familiar. Hillsboro Oil Co. v. White, (Tex. Civ. App.) 54 S. W. Rep. 432. That a person will violate the law. International &c. Co. v. Gray, 65 That a gas lamp in a city is lighted at night. Fisher v. Rankin, 78 Of performance of duty where the facts show inattention. Central Trust Co. v. East Tennessee &c. R. Co., 70 Fed. Rep. 764. That intermittent insanity continued. State v. Hayward, 62 Minn. That a contract would have been performed had the telegram been delivered. Brewster v. Western U. Teleg. Co., 65 Ark. 537. V. How Presumption of Negligence May Be Overcome. It is for the jury to say and determine whether the evidence rebuts the pre- Overcome by proof: That due care was in fact exercised. Stoodt v. Detroit &c. R. Co., Miss. 303; Lachner Bros. v. Adams Exp. Co., 72 Mo. App. 13; Mitchell v. Carolina C. R. Co., 124 N. C. 236; Toledo &c. R. Co. v. Amboch, 10 Oh. C. C. 490; St. Louis &c. R. Co. v. Martin, (Tex. Civ. App.) 35 S. W. Rep. 28; International &c. R. Co. v. Johnson, 23 Tex. Civ. App. 160; Thomas v. Cincinnati &c. R. Co., 91 Fed. Rep. 206; Whitney v. New Proper equipment, inspection and management of engine and cars. Cleveland &c. R. Co. v. Case, 71 Ill. App. 459; Lockwood v. Chicago |