Court case(1863) 2 H and C 722

The plaintiff was walking along a public street past the defendant's shop and warehouse; the defendant was a dealer in flour. A barrel of flour fell from an upper window of the defendant's premises, where it was being lowered by a jigger-hoist, and struck the plaintiff, causing him serious injuries. The plaintiff did not know, and could not prove, how or why the barrel fell, and offered no evidence of any specific negligent act of the defendant or his servants. The trial judge nonsuited him on the ground that there was no evidence of negligence.

The Court of Exchequer set aside the nonsuit. Pollock CB said that there are many accidents from which no presumption of negligence can arise, but this was not one of them: a barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who was injured by it must call witnesses from the warehouse to prove negligence would be preposterous. The fact of the accident was itself evidence of negligence. The barrel was in the custody of the defendant, who was responsible for the acts of his servants who controlled it; if there were any facts inconsistent with negligence, it was for the defendant to prove them.