Tbe principal exceptions relied on by tbe defendant are to tbe refusal to enter judgment of nonsuit at tbe conclusion of tbe evidence and for failure to give proper instructions on tbe issue of com tributory negligence.
It is not necessary to set out and review tbe instructions given and refused on tbe second issue, as we find no evidence of contributory negligence. According to all tbe evidence of tbe plaintiff and tbe defendant, tbe plaintiff entered tbe car and took a seat prepared by tbe defendant for passengers and was injured by tbe sudden movement of tbe train while sitting quietly talking to other passengers, and in this we find no evidence of negligent or wrongful conduct on bis part.
"We are also of opinion that there was evidence of negligence, as proof that tbe plaintiff was injured in tbe manner described while a passenger on tbe train of tbe defendant is itself some evidence of negligence. 5 R. C. L., 74; Marable v. R. R., 142 N. C., 557; Gleeson v. R. R., 140 U. S., 435.
In tbe Marable case tbe plaintiff was injured while- a passehger in a caboose of a freight train by a sudden movement of tbe train, and the instruction was approved that “If there was such a sudden and violent stopping of tbe train that plaintiff was thrown from bis seat, it would require explanation from tbe defendant, and tbe inquiry naturally arises, Why was tbe train so suddenly stopped? Tbe answer would naturally come from tbe defendant, as tbe plaintiff was in tbe caboose and tbe defendant’s servants were in charge of tbe train”; and in tbe Gleeson case tbe Court said: “Since tbe decisions in Stokes v. Salstontall, 38 U. S., (13 Pet.), 181, and New Jersey R. and Transp. Co. v. Pollard, 89 U. S. (22 Wall.), 341, it bas been settled law in this Court that tbe happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on tbe part of tbe carrier, and that (tbe passenger being himself in tbe .exercise of due care) tbe burden then rests upon tbe carrier to show that its whole duty was performed, and that tbe injury was unavoidable by human foresight. Tbe rale announced in those cases has received general acceptance, and was followed at tbe present term in Inland and Seaboard Coasting Co. v. Tolson, 139 U. S., 551.”
*670The reasons for the application of this principle are stated in 5 B. C. L., 77, to be: “(1) The contractual -relation between the carrier and passenger, by which it is incumbent on the carrier to transport with safety; hence the burden of explaining failure of performance should be on the carrier. (2) The cause of the accident, if not exclusively within the knowledge of the carrier, is usually better known to the carrier, and this superior knowledge makes it just that the carrier should explain. (3) Injury to a passenger by a carrier is something that does not usually happen when the carrier is exercising due care; hence the fact of injury affords a presumption that such care is wanting”; and the exceptions to the rule as stated on page 82 are when the evidence shows that the cause of the injury is outside the control of the carrier, and has no connection with the machinery or appliances of transportation and so disconnected from the operation of the business of the carrier as not to involve -the safety or sufficiency of the instrumentalities of transportation or the negligence of its servants.
The fact that the plaintiff was injured while riding on a freight train does not absolve the defendant from liability for negligence.
A carrier of passengers on freight trains owes to them the same high degree of care which it owes to passengers on regular passenger trains, although it is not liable for injuries resulting from such sudden starts and stops as are necessary for the operation of such trains. Moore on Carriers, 1264.
The other exceptions relied on in the brief are to parts of his Honor’s charge in which, after telling the jury that they must find that the defendant was negligent, added: “and that that negligence caused the injury, before answering the first issue ‘Tes,’ ” the objection being that this portion of the charge did not take into consideration proximate cause.
In some instances it is desirable to instruct the jury carefully and accurately as to proximate cause, but in this case the jury could not have been misled, as on all the evidence the plaintiff was injured by a sudden movement of the train, and the only matter in controversy was whether this movement was one that was ordinary and usual or extraordinary and unusual.
The instructions on the first and second issues were more favorable to the defendant than-it was entitled to, and we find no error on the third issue.
No error.