
    ELIZABETH RYAN, ADMINISTRATRIX, ETC., APPELLANT, v. PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT.
    Argued January 20, 1925
    Decided March 16, 1925.
    1. The fact that the deceased was struck by an electric ear, in the absence of any proof from which the negligence of the motorman may be inferred, is not sufficient to send the case to the jury, in an action to recover damages under the Death act.
    2. Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence.
    On appeal from the Bergen County Circuit Court.
    For the -appellant, Alexander Simpson.
    
    For the respondent, Joseph Coult and Leonard J. Tyman.
    
   The opinion of the court was delivered by

Black, J.

The suit in this case was brought to recover damages under the Death act. The plaintiff’s intestate was killed on the 2d day of November, 1923, at a public highway crossing known as Division street or lane, in the town of G-rantwood, Bergen county, New Jersey. The deceased was struck by an electric car of the defendant company, after which he died from the injuries. No one saw the occurrence.

There was no testimony offered from which the surrounding facts can be ascertained. There is proof only of one important fact, viz., the car hit the deceased. There is no proof of any facts from which negligence of the motorman of the trolley car may be inferred. It is elementary that negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence. McCombe v. Public Service Railway Co., 95 N. J. L. 187. The trial resulted in a'nonsuit of the plaintiff. The judgment of non-suit should be affirmed. The ruling of the trial court is in harmony with our rulings in the cases of Alvino v. Public Service Railway Co., 97 Id. 526, and Olsen v. Erie Railroad Co., 99 Id. 485.

The judgment of the Bergen Circuit Court is affirmed.

For affirmance — The Chancellor, Chiee Justice, Tren chard, Parker, Minturn, Black, Katzenbach, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal — None.  