This raised a question of fact for the jury to pass on. While appellee's testimony on this phase of the case at certain parts was not quite as definite as the statements from which we quote, yet it was the province of the jury to reconcile the evidence: Giles v. Bennett, 298 Pa. 158; Cronmuller v. Evening Telegraph, 232 Pa. 14. The cases holding to an apparently different doctrine (see Faulkner v. Boston Maine R. R., 187 Mass. 254, 72 N.E. 976; Strembel v. Brooklyn Heights R. R., 110 App. Div. 23, 96 N.Y. Supp. 903; Boucher v. Boston Maine R. R., 76 N.H. 91; 79 A. 993; and Annotation, 29 A.L.R. 1262) on examination are distinguishable by the type of window there involved; there was in each case the old-fashioned, single-catch window, the fall of which might with equal certainty be attributed to the failure of some passenger to raise the sash to the height at which the latch would become engaged, as to negligence on the part of the carrier. Appellant offers the testimony of its inspectors.

The mere fact that the bell did not ring, if it is a fact, does not authorize the inference that its failure to do so was due to the defendant's negligence since it is apparent that it may have been due to some cause for which the defendant was not responsible. ( Boucher v. Boston M.R.R., 76 N.H. 91 [Ann. Cas. 1912B, 847, 34 L.R.A. (N.S.) 728, 79 A. 993]; Bowditch v. Jackson, 76 N.H. 351 [Ann.

"Negligence is a fact for the plaintiff to prove by a preponderance of the evidence; a fact for the jury to find or not, without any presumption of law one way or the other." Boucher v. Railroad, 76 N.H. 91, 93, 79 A. 993, 994 (1911) (quotation omitted). [4] In support of his position, the plaintiff cites to cases that consider a surgeon the "captain of the ship" and therefore liable whenever a foreign object is retained within a patient regardless of the surgeon's own negligence.

Prosser, Torts (2nd ed. 1955) 147. There "is general agreement that the reasonable man engaged in the public transportation business would recognize the great potential dangers which attend rapid transit and would take all practicable precautions to guard his passengers against them." 2 Harper and James, The Law of Torts (1956) s. 16.14. However a common carrier is not an insurer of the safety of passengers and its liability for injuries to a passenger is based on negligence. Boucher v. Railroad, 76 N.H. 91. In the absence of any apparent necessity for assistance to a passenger in boarding or alighting from a train, the carrier is under no duty to furnish it. Shipman v. United Electric Railways Co., 68 R. I. 39. Special circumstances, however, may place a duty on the carrier to render personal assistance.

Prosser on Torts, p. 293. See Foss v. Baker, 62 N.H. 247, 249; Boucher v. Railroad, 76 N.H. 91, 95; McCourt v. Travers, 87 N.H. 185, 186; anno. 4 A.L.R. (2d) 466, 467.

" The testimony of the fourteen year old passenger, given on direct examination, is just as unsatisfactory: "A. I thought it was going to Brookline, so I didn't watch it anymore. . . . At first it looked as though it was going down Brookline Street, and I didn't watch it any more; then I looked again and it was coming right for us." Boucher v. Railroad, 76 N.H. 91; Berquist v. Company, 91 N.H. 428. Photographs introduced in evidence by the plaintiffs show the tire marks of the truck for at least thirty or forty feet in its rear. They make not an abrupt turn across the area of the intersection from a course leading to Brookline but the natural course of a vehicle proceeding to Hollis from Pepperell, save for the last instant turn to the right off the road in an attempt to avoid the collision.

The doctrine of res ipsa loquitur is inapplicable where, as here, the accident may have been due to some cause other than the defendant's negligence. Boucher v. Railroad, 76 N.H. 91, 96. The Federal Employers' Liability Act "does not make the carrier an insurer of the safety of its employees" (Sweeney v. Railroad, 87 N.H. 90, 93) and since the plaintiff has failed to sustain the requisite burden of proof on the issue of the defendant's negligence (Watkins v. Hustis, 79 N.H. 285), the order must be

The defendant attributed the accident to his running upon a "hogback" or ridge about four inches high which extended across the road and which caused the car to swerve out of his control. There was ample evidence that no such ridge existed, which if believed by the jury, there being no evidence of mechanical defect in the car or physical defect in the driver, would have brought the case within the rule laid down in Foss v. Baker, 62 N.H. 247; Emery v. Railroad, 67 N.H. 434; and Boucher v. Railroad, 76 N.H. 91. The rule of these cases is best expressed in the following language from Scott v. Company, 3 H. C. 596, quoted in the Foss and Boucher cases. "Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care." The defendant's motions for a nonsuit and for a directed verdict were properly denied.

The falling of the sash was evidently an event which proceeded from an unknown cause and must be ascribed to accident or casualty." Saunders v. Norfolk Western Ry. Co., 185 N.C. 289, 291, 117 S.E. 4, 29 A. L. R. 1258. The following cases, among others, adopt the reasoning upon which the conclusion was reached in the above citation and sustain our ruling in the present case that the doctrine of res ipsa loquitur does not apply: Murphy v. Boston Elevated Ry. Co., 229 Mass. 38, 118 N.E. 191; Faulkner v. Boston Maine Railroad, 187 Mass. 254, 255, 72 N.E. 976; Strembel v. Brooklyn Heights R. Co., 96 N.Y.S. 903; Eaton v. New York Central H.R. R. Co., 195 N.Y. 267, 88 N.E. 378; Bleiwise v. Pennsylvania R. Co., 81 N.J.L. 160, 78 A. 1058, 1059; Boucher v. Boston Maine Railroad, 76 N. H. 91, 79 A. 993.

Deagle v. New York, New Haven Hartford Railroad, 217 Mass. 23, 24. In Boucher v. Boston Maine Railroad, 76 N.H. 91, at page 95, it was said: "The carrier does not insure the passenger against injury from any cause during transportation, and there is no implied contract of safe carriage. The plaintiff's right of action is based on negligence, and negligence must be shown to authorize a recovery. If the accident may have been due to other causes than the carrier's negligence, the fact of the accident does not authorize the inference of negligence.