Mr. Justice Mercur
delivered the opinion of the court, January 3d 1881.
This action was by a passenger to recover damages which he sustained while in a car of a street railway company, in being struck by a passing load of hay. He sat hear an open window,with his arm so exposed that it was struck and injured by the hay on a passing wagon. Thus the proximate cause of injury, at least in part, was caused by the act of a third party, over which the railroad company had no control. If the injury was caused by contributory negligence of the passenger, or by the sole negligence of the driver of the wagon, there should be no recovery against the company. _ The jury has found the passenger was without fault on his part. To enable him to recover he must also prove that the company was guilty of negligence and its negligence was a cause of the injury. It is just here that the errors covered by the first, fourth and fifth assignments appear. The learned judge substantially charged, if the defendant in error was without fault, the company must prove that it was guilty of no negligence. Thus shifting the burden of proof resting on the passenger and throwing it on the company to disprove negligence. This was error. The duty rested on the defendant in error to prove negligence of the company. Without this he established no cause of action against it: McCully v. Clark, 4 Wright 399; Allen v. Willard, 7 P. F. Smith 374; Waters v. Wing, 9 Id. 211. It is true in many cases the mere fact of injury to a passenger raises the presumption of want of care on the part of a railroad company. Such is the case when the injury results from defective track, cars, machinery or motive power. Here there was no privity between the company and the’driver of the wagon. It was then not liable for the act of the driver thereof on the principle of respondeat superior: Railroad Co. v. Hinds, 3 P. F. Smith 512. The ear did not leave its track. It is not alleged that any of the property of the company was improperly constructed or out of repair. If we correctly understand the complaint, it relates solely to the speed of the car. We see nothing in the case which relieved the defendant in error from proving negligence, or that threw on the company the burden of disproving it. It is not sufficient that he be free from fault, he must prove other facts creating a presumption at least of negligence in the company producing the injury. The question then on this branch of the case, is whether, under the whole evidence, the jury is satisfied that the company did not use all just and proper care and diligence to prevent the injury?
It was urged on the argument that the first assignment was improperly made, as the point covered thereby was withdrawn. It is, however, duly certified as a part of the record, showing that it was affirmed and bill sealed for defendant below. This creates a presumption that it was read and answered in the hearing of the jury. It then had an effect not removed by its subsequent withdrawal, and may be reviewed. That question is of no practical importance now, inasmuch as substantially the same instructions are contained in the portions of the charge covered by the fourth and fifth assignments. The second and third assignments are not sustained.
Judgment reversed, and a venire facias de novo awarded.