Atchison v. Wills
21 App. D.C. 548
D.C. Cir.
1903
Check Treatment
Mr. Chief Justice Alvey

delivered the opinion of the Court:

In the course of the trial several questions were raised, and are presented to this court by exception. And though several assignments of error are made, only three or four questions •are pressed in argument.

1. The first of these questions urged is, that inasmuch as the declaration alleges that the plaintiff’s injuries were occasioned by the gross and wanton neglig'ence of the defendant’s servant in failing to give any warning or notice of the fact that he had entered the premises and opened the trap-floor and left the same open, and carelessly allowed the same to remain open, it was incumbent upon the plaintiff to give affirmative proof of the case as alleged, and that proof of ordinary negligence only was a fatal variance.

There are some decisions that have held in accordance with the contention of the defendant in this case. But the great weight of authority, and especially of recent decisions, is •clearly against the contention of the defendant in this case. The distinction between negligence and gross negligence, carelessness and gross carelessness, is to a great extent merely verbal; it is simply negligence with a strong adjective of •qualification or description. There can be, legally speaking, no degrees of negligence on the part of the defendant, any more than there can be degrees of due care on the part of the plaintiff; for, in respect to the same transaction, the presence ■of the one element of conduct implies the absence of the other. Any negligence therefore which is legally sufficient to charge the defendant with liability, is, in a legal sense, gross negligence ; and the question whether the defendant is to be charged therewith, as being a question of fact, must depend upon the circumstances of the case; as must also the question whether the plaintiff was in the exercise of due care, or, in other words, not guilty of contributory negligence. The term negligence is a relative term, and conduct which may be negligent in one condition of circumstances may bear a very dif*562ferent construction in another. Buswell, Law, Personal Injuries, 127-8.

In the case of Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600 (cited with approval by the Supreme Court of the United States, in Milwaukee R. Co. v. Arms, 91 U. S. 489, 494), Mr. Justice Miller said:

“ Confusion has arisen from regarding 1 negligence ’ as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. ‘ Gross ’ is a word of description, and not of definition; and it would have been only introducing a source of confusion to use the expression ‘gross negligence’ instead of the equivalent— a want of due care and skill.”

And as said by the Supreme Court of the United States, in the case of Milwaukee R. Co. v. Arms, supra, “ ‘ Gross negligence ’ is a relative term. It is doubtless to be understood as-meaning a greater want of care than is implied by the term ‘ ordinary negligence;’ but after all, it means the absence of the care that was necessary under the circumstances. In this sense the collision in controversy was the result of gross negligence, because the employees of the company did not use the care that was required to avoid the accident.”

The question of the degrees of negligence, as sometimes attempted to be applied, was very fully discussed and shown to be impracticable, by Mr. Justice Curtis, in the case of The Steamboat New World v. King, 16 How. 469, referred to in 91 U. S. 494, from which we have quoted.

It is clear, therefore, that the allegation in the declaration that the injury complained of was occasioned by the gross and wanton negligence of the defendant’s employee did not impose upon the plaintiff any other or greater burden of proof than to show that the employee of the defendant did not use the care that was required to avoid the accident.

2. It is next contended, that inasmuch as the plaintiff has alleged in her declaration that- she received the injuries while in the exercise of ordinary care on her part, and that she was not guilty of any carelessness or negligence in causing the injury, she was bound to furnish affirmative proof in support *563of this allegation. This is the rule in some jurisdictions, but it is not the rule here. The allegation is not a material one to be made in the declaration, but being made, the natural instinct of self-preservation would stand in the place of positive evidence to support the allegation, until evidence by proof of contributory negligence furnished by the defendant, or that may be gathered from the evidence introduced by the plaintiff in proving the cause of action alleged in the declaration, overcomes this presumption in behalf of the plaintiff. Tbis rule has been applied in many cases; and it was applied in the case of Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 524, which has been followed in subsequent cases. In that case the court was asked to rule tbat there was no affirmative testimony to show that the injured person looked to see where be was going as be approached tbe crossing; tbis ruling was refused, and tbe court held tbat the presumption tbat tbe injured person would look out for bis own safety might well control tbe case, and tbat it was right to leave tbe question of contributory negligence to the jury, as was fairly done in tbe present case, by tbe fourth instruction granted at tbe instance of tbe def endant. Tbe rule tbat prevails in tbis jurisdiction is, tbat tbe onus of proof is upon tbe plaintiff to establish bis case, by proof of the negligence of tbe defendant, the injuries resulting therefrom, and bis case is made out. If there be circumstances wbicb convict him of contributory negligence, tbe defendant must prove them and thus defeat the action. Irrespective of statute law on tbe subject, tbe burden of proof upon tbat subject does not rest upon tbe plaintiff to show himself free of blame, tbat is to say, tbe want of care on tbe part of tbe plaintiff is matter of defense, to be proved by tbe defendant. Railroad Company v. Gladmon, 15 Wall. 401, 406.

It follows tbat there is no ground for reversal in tbe second error assigned.

3. Tbe objection to tbe admissibility of tbe testimony of tbe witness Wills, [tbe appellee’s son] as to bis custom in giving notice or warning to the family when tbe trap-door was to be opened, tbat they might avoid tbe danger of falling *564through it, is the subject of the third error assigned. We perceive no serious ground for the objection to this evidence. The testimony may not have been of any very direct importance ; but with the knowledge of the fact of such habitual notification, the plaintiff, in the absence of such notice, may have supposed that the trap-door remained closed as usual, and that it was therefore safe for her to step out of the room door on to the porch. It was a circumstance that could do no injury to the defendant, in view of the positive testimony of the plaintiff, that she did not know, and had no reason to suppose, that the trap-door was open.

4. The next assignment of error presents a question of supposed variance between allegation and proof. The declaration alleges that the plaintiff sustained certain serious and permanent injuries, to wit, a fracture of the right arm near the shoulder, and several other serious bruises, etc.; and the proof in respect to the fracture of the arm showed that the fracture was just below the shoulder joint, and that the effect of the injury extended to and affected the joint and produced restriction thereof. We are at a loss to discover any reasonable ground for the objection to the evidence, because of any supposed variance. The fracture was just below the joint, ar.d the effect of the fracture produced the restriction of the joint, spoken of by the physician. The plaintiff was certainly entitled to give proof as to the nature of the fracture and of all the consequences produced thereby. It was not necessary that the declaration should have shown by allegation that the shoulder joint had been affected as a consequence of the fracture of the arm just below the joint. There is no ground for the error assigned in respect to this supposed variance.

o. The fifth assignment of error relates to the prayers that were ruled upon by the court below. But the objections taken to the prayers granted at the instance of the plaintiff, and to the refusal to grant those offered by the defendant, are disposed of in what we have said in respect of the previous assignments of error. Upon careful examination, we find no error of which the defendant can complain, in any of the rulings of the court in disposing of the prayers for instruc*565tion, nor in that portion of the court’s charge to the jury to which exception was taken by the defendant.

Finding no error in the rulings of the court the judgment must be affirmed; and it is so ordered.

Judgment affirmed.