Opinion of the Court, per RUGER, Ch. J. no contract. (Wells v. N. Y. C. R. R., 24 N. Y. 181; Bissell v. N. Y. C. R. R. Co., 25 id. 449, 450; 16 How. [U. S.] 460; 14 id. 468.) A contract exempting a carrier from liability for negligence must be made on a good and sufficient consideration. (Bissell v. N. Y. C. R. R. Co., 25 N. Y. 449, 450; Lee v. Marsh, 43 Barb. 105; Mynard v. S. & B. R. R. Co., 71 N. Y. 180; Perkins v. N. Y. C. R. R. Co., 24 id. 201; 2 Kent's Com. [12th ed.] 450; Poucher v. N. Y. C. R. R. Co., 49 N. Y. 263; Mynard v. S. & B. R. R. Co., 71 id. 180.) Exemptions by contract are to be construed most strongly against the company. (Mynard v. S. & B. R. R. Co., 71 N. Y. 180; Blair v. Erie Ry. Co., 66 id. 313.) Plaintiff could not avail herself of the contract between the company and the government as a basis of the right of action under the rule laid down. (Bolton v. W. R. R. Co., 15 N. Y. 444.) If the deceased was a passenger there was no error in that part of the charge defining the duty and degree of care the defendant was bound to exercise toward him. (Edgerton v. N. Y. & H. R. R., 39 N. Y. 227; Curtis v. R. & S. R. R. Co., 18 id. 543.) The evidence that the switch was open after the accident, and evidence that the train went in direction of the switch tended to show that the switch was improperly placed, and was proper for the consideration of the jury upon that question. (Curtis v. R. & S. R. R., 18 N. Y. 543.) RUGER, Ch. J. The cause of the accident whereby the plaintiff's intestate lost his life was left in some doubt by the testimony, and was altogether a matter of inference for the jury to draw from the circumstances appearing in evidence relating thereto. No direct evidence was given on the subject by either party, the defendant seeking to establish the inference that it was occasioned by the breaking of an axle by proving from the evidence of its employes and others that the axle of the engine was found broken after the accident and that its switches were properly set; that the road-bed and machinery of the train were of sound material, in good order and condition, and that Opinion of the Court, per RUGER, Ch. J. the train was carefully and skillfully managed; and the plaintiff, from the nature of the accident, the results produced and the circumstances surrounding it, that it was occasioned by the negligence of the defendant's servants in setting the switches at the place of accident, whereby the train was diverted from the main track and brought in collision with obstructions on a side track which produced the injury complained of. It was undisputed in the case, that the casualty occurred in the immediate vicinity of the switch; that the cars left the main track following either upon or in the general line of the side track leading from the switch; that they came in collision with cars standing on the side track at a distance of several hundred feet from the switch, and that the proximate cause of the destruction of the mail car was the collision between the train and the cars standing on the side track. These circumstances afforded a strong presumption that the train was diverted from the main track by some disarrangement of the switch. No adequate cause for the various circumstances appeared in evidence except that afforded by the presumption of a misplaced switch. Notwithstanding the positive evidence of witnesses to the effect that at different times, during the few hours preceding this accident, they had examined these switches and found them properly set and locked, there was sufficient evidence derivable from the undisputed facts, and the conflicting statements as to the situation of the connecting rails of the side track after the accident, to afford a support for the inference, probably drawn by the jury, that the accident was caused by a misplacement of one or both of the switches. There was evidence tending to show that the mail car was thrown from the side. track a distance from thirty to fifty feet down an embankment, and was found to be lying nearly abreast of the engine at right angles with it, and on fire immediately after the accident occurred. The situation, not only of this car, but that of the baggage and smoking cars attached to it, was such that it could not probably have been produced except by a collision between Opinion of the Court, per RUGER, Ch. J. a train moving with considerable velocity upon a clear track and a body offering great resistance. From these facts the jury might very well have concluded that the evidence which attempted to account for the accident upon the theory that the train left the track near the upper switch in consequence of a broken axle, involving as it did the proposition that it must have run nearly four hundred feet over railroad ties and other obstructions before colliding with the cars standing on the side track, was quite improbable, and did not sufficiently account for the results disclosed by other undisputed evidence. There was evidence to support the finding of the jury upon the question of the defendant's negligence, and we see no ground upon which to interfere with the conclusions reached. At the close of the case the defendant requested an instruetion to the jury that "the burden of proof is on the plaintiff to establish the negligence of the defendant. If there is a reasonable doubt on the whole evidence as to the negligence of the defendant, the verdict should be for the defendant." We think the court committed no error in refusing to charge as requested. While it is true as a general proposition that the burden of showing negligence on the part of the defendant occasioning an injury, rests in the first instance upon the plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault. (Caldwell v. N. J. Steamboat Co., 47 N. Y. 291; Edgerton v. N. Y. & Harlem R. R. Co., 39 id. 227; Curtis v. R. & Syracuse R. R. Co., 18 id. 534.) It was said by Judge GROVER in the Edgerton Case," whenever a car or train leaves the track it proves that either the track or machinery, or some portion thereof, is not in a proper condition, or that the machinery is not properly operated, and presumptively proves that the defendant, whose duty it is to keep the track and machinery in the proper condition and to operate it with the necessary prudence and care, has in some respect violated his Opinion of the Court, per RUGER, Ch. J. duty." "The court charged that the defendant was bound to show and give some explanation of the cause of the accident. This portion of the charge must be understood in reference to the facts of this case and as applied to such facts. In this view it was not erroneous." (See, also, The J. Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; Mullen v. St. John, 57 id. 572; Ginna v. Second Avenue R. R. Co., 67 id. 597.) When this request was made the evidence had clearly raised a presumption of negligence against the defendant, and the only question relating thereto which remained for the jury to consider was whether this presumption had been sufficiently negatived by the evidence introduced by the defendant. Under the authorities cited it would not have been error even if the court had charged that the plaintiff had established a prima facie case, and the burden of explaining the cause of the accident then rested upon the defendant. The request must be considered with reference to all the facts appearing in the case at the time it was made, and as applied to them we do not think the defendant was entitled to the charge requested. This request was also properly denied for the reason that it was coupled with the proposition that the jury should find for the defendant if they entertained a reasonable doubt upon the whole evidence as to the negligence of the defendant. We are not aware of any rule applicable to the trial of issues of fact in civil actions which requires a party upon whom the burden of proof rests to establish a case free from reasonable doubt. In criminal cases the law, out of tender regard for the rights of accused persons, and the presumption of innocence which always attaches to persons in that situation, gives to the defendant the benefit of any reasonable doubt existing as to his guilt; but in civil actions, unless the issue involves the commission of a crime by some of the parties thereto, the application of such a rule is, we think, unauthorized by the law of evidence. It was held, in the case of Johnson v. Agricultural Insurance Company (25 Hun, 251), where the defendant had, in answer to an action upon a policy of insurSICKELS - VOL. L. 72 Opinion of the Court, per RUGER, Ch. J. ance to recover dainages for a loss occasioned by fire, alleged that the plaintiff had himself fired the insured buildings; that it was sufficient if the defense was supported by a preponderance of evidence, and that it was error to require the defense to be proved beyond a reasonable doubt. The question decided in that case has been the subject of considerable controversy among authors upon evidence, and we do not intend to express any opinion thereon; but we apprehend that the case suggested presents the only exception, if any exists to the rule, that upon the trial of a civil action the party sustaining the burden of proof performs his obligation by presenting a preponderance of evidence. The rule is concisely stated in 3 Greenleaf's Evidence, section 29, as follows: "A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict for the government. In civil cases their duty is to weigh the evidence carefully and to find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt. But in criminal cases the party accused is entitled to the benefit of the legal presumption in favor of innocence which, in doubtful cases, is always sufficient to turn the scale in his favor." The exceptions taken to the ruling of the court in holding that the defendant owed the same degree of care to the clerks and mail agents riding in the postal car, in charge of the mails, as they did to passengers riding upon the train, were not well founded. That question was decided in the case of Nolton v. Western Railway Company (15 N. Y. 444) and Blair v. Erie Railway Co. (66 id. 313), and we see no reason for questioning the correctness of the disposition then made of the question. The opinion in the case of Pennsylvania Railroad Company v. Price (96 Penn. St. 256) not only does not conflict with the doctrine of these cases but cites with approval the Nolton Case. The question in that case was upon the construction to be given to the word " passenger," as used in the act of 4th April, 1868 (Pamph. L., page 58) of the Laws of Pennsylvania, and it was held, from the language employed in the act, that the legislature intended to |