39 App. D.C. 58 | D.C. Cir. | 1912
Lead Opinion
delivered the opinion of the Court:
The fundamental questions presented by the record arise on
1. Assuming, for the time being, that both defendant corporations are responsible for the operation of the cars on the scenic railway, the first question is whether there was sufficient evidence to warrant the submission of the issue of negligence to the jury. “The provinces of the court and jury in the Federal judiciary system are separate and distinct, and the line of division between them must be carefully observed. The ascertainment of this boundary is often a matter of difficulty in a particular case, and when the difficulty arises doubts should be resolved in favor of trial by jury, which is the constitutional right of every suitor in the courts of common law. . . . And the court is never justified in directing a verdict, except in cases where, conceding the credibility of the witnesses,, and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.” Adams v. Washington & G. R. Co. 9 App. D. C. 26-30, and cases cited. In other words it is only where all reasonable men can draw but one inference from the facts that the question is one of law for the court. Jennings v. Philadelphia, B. & W. R. Co. 29 App. D. C. 219-235, 10 Ann. Cas. 761; Marande v. Texas & P. R. Co. 184 U. S. 173-191, 46 L. ed. 487-495, 22 Sup. Ct. Rep. 340.
Applying these principles to the evidence, we are of the opinion that the court did not err in submitting the issue to the jury. The death of the plaintiff’s intestate may be accounted for by two inferences from all of the facts given in evidence. One is that, by unnecessary exposure, his head came in contact with a post some 18 inches from the side of the car; the other that he was struck by some piece of the superstructure falling therefrom, which knocked him down and caused his head to come in contact with the post. Whether it inflicted a mortal wound, or only knocked him over so that his head struck the post, is immaterial. As recited in the statement, two witnesses saw a flash of some falling object. Both
It was the province of the jury to reconcile any conflict in
Their conclusion was that some part of the overhead structure—a piece of beam, or a bolt, or whatever else it might be ■—was loosened, and falling struck the deceased, causing him to fall from his seat and protrude his body far enough to strike the post which crushed his skull and dragged him from the car.
The learned trial justice approved the verdict, and we agree with him that the conclusion was not unreasonable.
Defendants did not move for a directed verdict until they had produced their evidence in opposition. Strange to say, they did not produce the gripman, who was in a better position than any passenger on the cars to see what caused the injury, although they had him in attendance upon the court. Moreover, while the structure was closed so that the public could not inspect its condition at the place of the accident, no evidence was produced to show that defendants had inspected it so as to ascertain if anything was out of order. Nor was there evidence produced to show that the structure had been inspected prior to the accident, and found safe and in good repair. Producing weaker evidence when stronger might have been produced lays the defendants open to the presumption or suspicion that the stronger evidence would have been to their prejudice. The New York, 175 U. S. 187—204, 44 L. ed. 126— 133, 20 Sup. Ct. Rep. 67; Runkle v. Burnham, 153 U. S. 216-224, 38 L. ed. 694-697, 14 Sup. Ct. Rep. 837; Graves v. United States, 150 U. S. 118-121, 37 L. ed. 1021-1023, 14 Sup. Ct. Rep. 40. In the case last cited, it was said: “The rule, even in criminal cases, is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”
This brings us to the consideration of some of the exceptions taken to the charge of the court in submitting the issue to the jury. The only one important to discuss is the 3d spe
This instruction correctly applies the law to the issue presented by the evidence, and is expressly limited thereto. The case of Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436, upon which defendants rely, involves a different state of facts. No injury occurred to the means of transportation. The party voluntarily protruded his head from the door of the car and came in contact with a bridge timber. But it was declared to-be the law in that case that when an injury occurs through some accident to the means of transportation, which is under the management of the carrier’s employees, and which, if they exercise proper care, could not ordinarily happen, it affords-reasonable evidence, in the absence of explanation, from which the negligence may be inferred. This principle was not applicable to the facts of that case. A similar instruction to-this was sustained in a recent decision of the Supreme Court of the United States in an action for damages for injury resulting from a high current of electricity that was carried into plaintiff’s house, through contact of the primary wire with the secondary wire, intended to carry a low voltage for lighting the house. It was said by the court that “These circumstances-pointed so persuasively to negligence on its part that it was. not too much to call upon it for an explanation. Of course, if the cause of the-injury was one which it could not have-been foreseen and guarded against, it was not culpable, but,,
2. The second question raised by the assignments of error relates to the separate liability of the Chesapeake Beach Railway Company for the operation of the scenic railway. The court refused an instruction asked by said railway company to the effect that there was no sufficient evidence to show that the railway company erected, operated, or maintained .’the scenic railway at the time of the accident. The issue was submitted to the jury upon instructions asked by the plaintiff. The first was to the effect that if the jury believed from the evidence that the railway company operated Chesapeake Beach as a pleasure resort, in connection with its railway; that the hotel company was under the control of, and operated by, the railway company as one of its departments in the maintenance of Chesapeake Beach; and that the hotel company as the agent of the railway company operated the scenic railway,—the verdict should bo against both defendants, if found guilty of negligence. The second instruction was to the effect that if the jury found from the evidence that the railway company apparently or nominally controlled the amusement resort and the scenic railway; that it paid the salaries of the employees of the hotel company, and the employees who conducted said scenic railway and policed said resort; that it hired and paid the musicians employed in the dancing pavilion; that it adver
Mr. Moffatt, a Denver banker, was the originator of the Chesapeake Beach enterprise, and furnished the money for its exploitation. He was the owner of the land on which the various places of amusement were situated. He first organized the Chesapeake Beach Railway Corporation with a capital stock of $1,000,000, to build and operate the railway between the city of Washington and the beach resort. Of this stock he was the owner of 83 per cent. The scenic railway, board walk, pavilion, and other adjacent places of amusement and dissipation, were built later; by whom or at what cost does not appear. The chief business of the railway company was carrying passengers who might be attracted by the amusements offered. It advertised these amusements regularly in the Washington newspapers, and paid for them. It hired and paid the band that
The judgment against each defendant will be affirmed with costs. ' Affirmed,
Dissenting Opinion
dissenting:
This judgment is not based upon either fact, law or justice. My associates, in'a studious and skilful attempt to sustain the judgment below, have totally failed to advance any reason or theory that will support the right of recovery under the first count of the declaration. The first count charges defendants with negligence, in that certain wooden posts or uprights erected along the tracks at the point where the accident occurred were not a reasonably safe distance from the tracks; that they were unguarded, and that the deceased, by reason of the negligent
It appears that the train consisted of two open cars, in each of which were four seats. The deceased, with his daughter, occupied the rear seat of the front car. The two seats in front of them were each occupied by a lady and gentleman. No one was riding in the front seat. The rear car was occupied by passengers, and the motorman in charge of the train occupied a position on the rear of the front car immediately behind the deceased and his daughter.
It was conceded at bar that if deceased came to his death as the result of his head coming in contact with the upright posts, there could be no recovery. Every witness who saw the accident, and testified concerning it, all but one of whom were seated in the car immediately behind where the deceased was seated, testified that deceased was killed by coming in contact with the uprights which supported the roof of the structure; and those who saw all that occurred testified that he was killed by his head striking one of the posts, knocking him backward and downward in his seat, when he fell out against a second post which dragged him from the car. The evidence totally fails to establish negligence on the part of defendants under the first count. All the witnesses who were on or about the train at the time of the accident testified that it was moving at the usual rate of speed, with no jerking or anything unusual in its motion. The posts stood 13-|- inches from the ends of the car seats, which were 38 inches wide, furnishing ample space for two passengers. There was no evidence to show negligence in the location of the posts with reference to the cars, and no negligence in that respect can be inferred. It was also shown that fifty or sixty thousand passengers had been hauled annually on this railway without any accident having occurred before the one under consideration. If the deceased came to his death as the result of his head coming in contact with one of the posts while carelessly leaning out from the end of the seat, as described by the witnesses who saw what actually hap
Tbe failure to establish negligence on tbe part of defendants under tbe first count of tbe declaration being conceded, tbe court in its opinion attempts to sustain the judgment upon tbe evidence adduced in support of tbe charge of negligence contained in tbe second count, wherein it is charged, in effect, that tbe accident was occasioned by tbe defective condition of tbe roof or covering over tbe tracks at tbe point where tbe accident occurred, in that a cross beam or other object fell from its fastenings and struck tbe deceased, killing him.
In this branch of tbe case tbe theory that deceased came to bis death from bis bead striking the post is totally abandoned. Tbe two theories are inconsistent. Tbe judgment must rest on one or tbe other, not both, and since no liability was established under tbe first count, I will consider briefly tbe evidence in support of tbe second. Plaintiff relies entirely upon the testimony of tbe two men occupying tbe seats in front of 'the seat occupied by tbe deceased. Tbe first witness testified in chief as follows: “There was a flash of some kind. I don’t know what it was; but it appeared to be something falling. I dodged it. I dodged down between tbe seats like, and then I beard tbe little girl holloa, ‘My papa is killed.’ Now, what this was falling, or anything like that, I can’t say positively; but there was something there that made me dodge, and it bad tbe appearance and color of a piece of tbe superstructure at that time, which I think was a light pea green. I am not really positive about that, but anyhow it fell there kind of eater-cornered across the left of tbe car, and it made me go that way (indicating), dodging. * * * There was some flash across tbe tracks like this (indicating), and that is why I dodged. I didn’t know what it was.”
On cross-examination this witness testified as follows:
“Q. Do you recall whether you were talking to Mr. Kronbeim when you saw something flash by you ?
Q. Did yon see this object, whatever it was, that flashed?
A. I couldn’t tell you; but it was a flash or something. You could almost hear the swish through the air from it. I don’t know what it was. I know I dodged it to save myself, and immediately I dodged it, and I heard the little girl holloa.
Q. Did you hear anything strike?
A. No, sir.
Q. Did you hear anything around there crack, just before the object fell, whatever it was?
A. No, sir.
Q. What makes you think that this object was pea green?
A. Well, it was my impression at that time from the structure being painted that color.
Q. Your testimony, then, that this object was pea green, is based upon the assumption that the structure was pea green. Is that right?
A. Yes, sir.
Q. And you did not see the object ?
A. No, sir; I don’t know what it was.
The other witness testified in chief as follows: “As we got there, there was a flash came across like that, and I kind of moved, and, of course, after that, I heard the little girl holloa, 'My father is killed.’ Of course, I don’t remember anything after that. Of course, I don’t say that anything struck him, or anything like that. I don’t know that.”
On cross-examination this witness testified:
Q. You say you noticed a flash of some kind?
A. Yes, sir. I noticed a flash.
Q. You don’t know whether it was something that was big or small ?
A. I don’t know.
Q. Do you know anything about the color of it?
A. I don’t know anything about the color of it.
Q. Before you heard the flash did you hear any cracking or breaking of anything?
Q. After yon heard the flash, or at the same time yon heard the flash, did you hear any object strike anything around there ?
A. I can’t say I did.
This is all the testimony relied upon to support the charge of negligence in the second count of the declaration.
It is held by the court that this evidence established the fact that something in the structure was jarred loose, fell down, and struck the deceased, causing his death. Nothing was found in or about the car. The witnesses heard nothing breaking loose from the structure, saw nothing in the air that they could describe, and heard nothing strike. The witnesses in the rear car who actually witnessed the accident, and were in a position to observe what actually happened, saw no pea-green flash, and no object fall from the structure and hit the deceased. A witness who was standing on the beach under the car at the time of the accident testified that he was looking up and saw the deceased leaning out over the end of the seat, and saw his head strike one of the posts, and that nothing fell through upon the beach or into the water.
This branch of the case resolves itself into the sufficiency of the evidence relating to the flash to support the judgment. The court, in its opinion, is forced to draw the inference from this evidence, that a part of the structure jarred loose from overhead, fell down, and struck the deceased. The difficulty with this theory is that there is no legally established fact upon which the inference can be based. No [Dart of the structure was shown to have been jarred loose; nor was there anything found to indicate it. Neither is there any evidence that the deceased was struck by an object falling from the structure. Hence, the jury was left to infer from this mysterious flash, first, that something was jarred loose from the structure; second, that this something caused the flash, and, third, that it hit and killed the deceased. This is not only piling one inference upon another, but no legal fact has been established upon which to base any of the inferences. It follows that this evidence is not sufficient to support the verdict. Weaver v. Baltimore & O.
This brings us to the chief error into which my associates have fallen. The court below gave the jury the following instruction, which was objected to and assigned as error: “If the jury find from the evidence that the said Colman Brez at the time of his death was a passenger for hire on said scenic railway, and that part of said structure fell, causing him to be struck and killed by coming in contact with some part of said scenic railway, then the jury are instructed that the fact of such falling of such scenic railway, in the manner aforesaid, raises a presumption of negligence in the operation of said railway, and their verdict should be for the plaintiff, unless they should further find that such presumption is overcome by a fair preponderance of evidence showing that said defendants were not guilty of negligence in the conduct or maintenance of said railway.”
I am familiar with the cases in which this sort of an instruction is proper. The instruction, however, in this ease, was misleading and erroneous, in that it assumed that plaintiff proved that a portion of the structure fell and killed the deceased, when no such proof existed. Before defendants could be called upon to answer the charge in the second count, plaintiff must have shown as an affirmative fact, not only that a part of the structure fell, but that it caused the injury to deceased. No such proof appears in the record. Defendants were not called upon to explain the vision of the pea-green flash until plaintiff had affirmatively shown that it originated from the structure, and that it was the proximate cause of the death of the deceased. Neither of these facts was established.
Much is attempted to be made of the fact that the place was closed after the accident occurred, and of the further fact that defendants failed to place the motorman upon the stand. The record is silent as to any request having been made by anyone to inspect the structure after the accident, and it was not incumbent upon defendants, under the facts disclosed, to invite
It is sought in tbe opinion to apply tbe doctrine of res ipsa loquitur. Before that doctrine can be invoked some cause for tbe injury must be established. Tbe mere happening of an accident creates no presumption of negligence. Tbe cause of tbe accident must be affirmatively located before tbe rule can be invoked. As was said in Pennsylvania R. Co. v. MacKinney, 124 Pa. 462, 2 L.R.A. 820, 10 Am. St. Rep. 601, 17 Atl. 14: “A passenger’s leg is broken while on bis passage in a railroad car. This mere fact is no evidence of negligence on the part of tbe carrier until something further be shown. If tbe witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to tbe same carrier, tbe presumption of negligence immediately arises; not, however, from tbe fact that tbe leg was broken, but from tbe circumstances attending tbe fact.” In so far as tbe second count of tbe declaration is concerned, no relation has been established between tbe cause of tbe accident and tbe accident itself. It is well settled in actions of this kind that to establish a prima facie case that will entitle recovery, plaintiff must not only show that be sustained injury, but that defendant has been guilty of some negligent act which produced tbe injury. “Tbe negligence alleged and the injury sued for must bear tbe relation of cause and effect. Tbe concurrence of both and tbe nexus between them must exist to constitute a cause of action. As an injury may occur from causes other than tbe negligence of tbe party sued, it is obvious that before a liability on account of that injury can be fastened upon a
Here there is no known or proven act of defendants which occasioned the accident. The two witnesses who occupied seats in front of the deceased were totally ignorant of what caused his death. The only fact certainly established in support of the allegations of the second count of the declaration is that deceased was killed in some way, and the jury were allowed,, in the absence of any affirmative proof of the cause, to speculate, conjecture, and infer that some unknown act of negligence,, for -which defendants were responsible, caused the accident.. No circumstance has been shown in this case upon which an inference of negligence can' be based, or that will bring it, within the doctrine of res ipsa loquitur.
In viewing the whole case, there is no room for reasonable' minds to differ as to. how this accident occurred. Deceased carelessly leaned out of the car and struck one of the posts which knocked him back into his seat, from which he fell against a second post and was dragged from the car. The evidence, intelligently and fairly analyzed, will not admit of any other conclusion or hypothesis.
Errors of law are apparent upon the face of the record, but,, to reverse the judgment and order a new trial, in view of the-
A motion by the appellants for a rehearing was denied October 19, 1912.