delivered the opinion of the court.
It is contended in behalf of appellant that the verdict and judgment are against the overwhelming weight of the evidence. The issues were submitted to the jury upon three counts of the declaration, the first two having been eliminated by instructions directing the jury to disregard them. The third count charged that appellant negligently permitted the slot or conduit to become filled, warped or clogged at the point where the accident occurred. The fourth count charged negligence in permitting switch tracks to become unsafe and the frog at. the switch to become loose; and in the fifth count appellant is charged with the negligent operation of the train so that the cars collided and were thrown suddenly and violently against each other. The evidence fails to disclose with certainty what was the cause of the accident. Appellee’s counsel ascribe it to the butt end of *345the movable tongue of a switch at or near the place of the accident, and contend that the grip iron ran into and was wedged against the butt of this movable tongue. The evidence tending to show that the accident occurred, that the train came to a sudden and violent stop, that it was derailed, the cars damaged and passengers thrown off or injured, is not disputed. It is claimed in behalf of appellee that this evidence sufficiently makes out a prima facie case, throwing the burden on appellant to show that the accident was not caused by its negligence. There is evidence tending to show that whatever the cause, the grip iron was in some way caught in the slot or below it, and had to be broken off in order to free the grip car and move it away. There is evidence also, though not undisputed, to the effect that the place where the grip iron was caught was at or near the so-called butt end of the movable tongue at the switch, and further that for some purpose or other the wrecking crew employed by appellant drove wedges into the slot while engaged in clearing away the wreck, or moving the injured cars out of the way. On the other hand.it appears that another train just ahead of that which met with the accident passed over the place without indication of anything being wrong, and the tracks and appliances there had been inspected and found in good order during the afternoon of the same day, an hour or more before the accident.
We are of opinion, however, that the evidence tending to indicate that from some cause the grip iron became wedged in the slot of the conduit in which the cable runs, was sufficient to make out such a prima facie case as to put the burden on appellant of disproving negligence in this respect on its own part. This it does not do. As said in Hill v. Chicago City Ry. Co., 126 Ill. App., 152—an action arising out of the same accident here in controversy—“It is not a usual circumstance for a street car moving on a track in a reasonably safe condition to suddenly leave the track in such a manner as to ipjure a passenger.” In that case, upon the authority of Chicago City Ry. Co. v. Rood, 163 *346Ill., 477, which is to the effect that “where the accident proceeds from an act of such a character that, when due care is taken in its performance no injury ordinarily ensues from it,” or “where the injury occurs by reason of any defect in the machinery or cars or apparatus or track of the carrier,” the burden of proof shifts and “the presumption then arises in favor of the negligence of the carrier and the burden of rebutting this presumption is thrown upon it”; upon authority of this and other cases cited in the same opinion, it was held “that the jury might reasonably have inferred from the evidence in the absence of any explanation by the defendant that the car ran from the track or became derailed because the track, including its appurtenances, was in an unsafe condition.” We discover nothing in the evidence tending to show that the accident was due to a cause beyond the control of the carrier, unless it he the mere failure to disclose with certainty what the cause was. There is no evidence of vis major nor of any tortious act of a stranger to rebut the presumption of negligence which arises where the accident is caused by apparatus wholly under the control of the carrier. See Chi. Union Trac. Co. v. Crosby, 109 Ill. App., 644.
It is urged that appellee was guilty of contributory negligence in riding on the front platform of the trailer where he was when hurt. Our. attention is not called to any evidence hearing upon the question whether appellee was neglh gent or not in being upon the platform. The question does not appear to have been raised in the trial court and it is too late to raise it here for the first time.
There is an affidavit filed in support of appellant’s motion for a new trial to the effect that one of the jury had stated to affiant after the trial that he had gone to the scene of the accident and formed his opinion upon what he saw then and there. The court refused to consider such affidavit, and we think properly. It purported to contain a statement made by a juror after he had been discharged from service in the case, not under sanction of an oath and tending to impeach his conduct when acting as a sworn juror. *347The reasons for the rejection of such an affidavit are well stated in Heldmaier v. Rehor, 188 Ill., 458-461. See also Phillips v. Town of Scales Mound, 195 Ill., 353—364.
It is urged that thé verdict and judgment are excessive. It is, we think, ample, but upon a careful examination of the evidence applicable we are unable to say that the evidence does not warrant the conclusion in this respect reached by the jury. The injury was severe, its consequences are permanent, appellee was entirely laid up about a year, underwent several operations and suffered much pain.
Finding no material error in the record the judgment of the Circuit Court must be affirmed.
Affirmed.