Page:Federal Reporter, 1st Series, Volume 9.djvu/892

 BOBINsU^i V. KlilW IUitiv CBNI. & HUDSOIi iiXVEfi fi. 00. 877 �EoBiNSON V. New Yoee Cent. & Hodson Eiveb E. Co. {Circuit Court, N. D. New York. January, 1882.) �1. BAiLTiOADS— Negligence. �Kailroad companies, as carriers of passengers, must apply to the boiler of a locomotive used by them in hauling paasenger trains every test recognized as necessary by experts ; but they are not liable for defects -which cannot be dis- covered by such tests.- �2. Phbstjmptions — How Ovbrcomb— Motion fob a New Trial. �The testimony of unimpeached witnesses 'wbo testify positively to faots which are uncontradicted overcomes a mere presumption ; but a verdict will not be set aside on this ground, unless the court is satisfled that the jury were controlled by their prejudices rather than by their impartial judgment. �On Motion for a New Trial. �E. Countryman, for plaintiff. �M. Haie, for defendant. �Wallace, D. J. The plaintiff, while upon one of the defendant's cars as a passenger, in June, 1878, was injured by the explosion of the boiler of the defendant's locomotive, -which was being used to push the train ont of the yard, and brought this action on the ground of negligence to recover for his injuries. Upon the issue of negligence the plaintiff rested his case by proving the explosion. The defendant produced its employes, who testified to the exercise of due care in the management of the boiler at the time of the explosion, and who also testified that the boiler had been recently overhauled, repaired, and tested, an^d found safe, and that the explosion resulted from a hidden flaw in the iron of the boiler which could not be seen. �The jury were instructed that they might infer negligence upon the theory that the explosion would not have taken place unless the boiler had been in a defective condition, or unless there had been some omission or mismanagement on the part of those in charge of it at the time. They were also instructed that it was incumbent upon the defendant as a passenger carrier to see to it, by every test recog- nized as necessary by experts, that the boiler was in a safe condition ; but that it was not liable for a defect which could not be discovered by such tests. �The first instruction is not oriticised. It is elementary that in action for negligence if the plaintiff proves he has been injured by an act of the defendant, of such a nature that in similar cases, where due care has been takjsn, no injury is known to ensue, he raises a presumption against the defendant which the latter must rebut. ��� �