Dixon

I concur in the judgment of reversal upon the first point discussed in the opinion of Mr. Justice Garoutte. I also concur in holding that the court properly refused a nonsuit. But I do not concur in that portion of the opinion which holds that the liability of the defendant is to be determined by the same rules which determine the liability of common carriers of passengers. Their relation to a passenger is such that, upon the proof of an injury sustained by him while being carried, negligence Is presumed, and the burden of exonerating itself from liability is thrown upon the carrier: Bush v. Barnett, 96 Cal. 202 , 31 Pac. 2 . In the present case, however, there was no contractual relation between the plaintiff and the defendant, and as the liability of the defendant is predicated solely upon his negligence, it was essential for the plaintiff to present some evidence tending to establish such negligence before she was entitled to recover: Wharton on Negligence, sec. 421. “It is believed that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to evidence of negligence on the part…

Respondent, while walking upon the sidewalk of Larkin street, in the city of San Francisco, was struck *736 upon the head, and quite seriously injured, by a chisel which fell from a scaffolding above, upon which one of the appellant’s employees was standing while engaged in affixing a cornice to the building. Damages were recovered in the lower court, and this appeal is from the judgment and order denying a new trial.

Appellant moved for a new trial upon the ground of misconduct of the jury, in this: that they arrived at their verdict by a resort to the determination of chance. The code expressly provides that such misconduct may be shown by the affidavits of jurors (Code Civ. Proc., sec. 657) ; and, in support of the motion, appellant presented the affidavit of one Koster, a juror, wherein he stated “that, upon retiring to the jury-room, the twelve jurors first agreed by a vote that the average sense of the jurors should control in arriving at what the verdict should be, and then the twelve jurors agreed to be controlled by their vote, and voted that the said average sense of the jurors should be arrived at in the manner following, namely, by each individual juror writing on a…