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is such as, in the ordinary course of business, would not happen if reasonable care was used, it affords, in the absence of explanation by the defendant, sufficent evidence that the accident arose from want of care on his part.
The following statement from Shearman and Redfield on Negligence, section 59, has been frequently approved by the courts:
It is not that in any case negligence can be assumed from the mere fact of any injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without f urther proof, sufficient evidence of the defendant's duty and of his neglect to perform it.
The above language used by Shearman and Redfield is employed also in the headnote of the case of Griffin vs. Manice (166 N. Y., p. 193) which is a leading case.
The editor of Cyc. summing up cases cited from the reports of many of the States in the United States phrases the general rule for the application of the maxim as follows:
To render the maxim applicable the thing causing the injury must be shown to have been in the exclusive control of the defendant and the rule has no application where the Injured person and the alleged negligent person were both in the exercise of an equal right and were each chargeable with the same degree of care (Cyc., vol. 29, p. 592).
In the case of Robinson vs. Thne Consolidated Gas Company (194 N. Y., 37), the New York Court of Appeals said of the doctrine of res ipsa loquitur:
The res of that maxim, which is sometimes misused, is not simply an ac,cident resulting in injury, but the accident and the surrounding circumstances necessarily shown by proving how the accident occurred. The doctrine does not permit a recovery without some proof of negligence, but it regulates the degree of proof required under certain circumstances. If proof of the occurrence shows that the accident was such as could not have happened without negligence, according to the ordinary experience of mankind, the doctrine is applied even if the precise omission or act of negligence is not specified, and even when it does not appear whether the accident was owing to some act done or to some act not done.
The maxim as used by the authorities we have quoted and as used in many other carefully analyzed cases decided in the courts of various States is based partly at least on the theory that where the defendant has exclusive control of the thing which has produced the accident it is within his power to produce evidence of the actual cause of the accident which the plaintiff is unable to present. And an analysis of these and other well considered
c as ha 1brougt1us.o the oncluIonta hn h oIne*

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