93 P. 271 | Utah | 1907
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on the defendant’s train. Plaintiff had judgment, from which the defendant appeals.
That the plaintiff was a passenger and that his injury, if any, was received while he was being transported by the defendant, are not controverted. The train ran from Milford to Newhouse, this state. It consisted of an engine, a combination baggage and passenger coach, a box car, a flat car loaded with lumber, and a water car, or water tank. It stopped at a place called the “Old Hickory Switch,” where the engine and the water car were uncoupled from the train, and a flying switch made with the latter car. In so doing the brake chain of that ear broke as the brakeman was winding the brake with a- stick. The car got beyond his control and collided with the passenger coach on which the plaintiff and other passengers were with such force as to break the king bolt, to slide the water tank containing seven thousand gallons of water weighing about fifty-six thousand pounds, and to push back the lumber on the flat car. When the chain broke, the brakeman called out “No brake,” and jumped from the car. Some one called to the passengers to “get out of the car.” As the passengers arose to leave, the conductor, who also was on the passenger coach, told them to be seated. Pearing the passengers in their attempt to get off the car might be thrown under it, the conductor closed the car door to prevent their leaving, and then jumped from the ear. When the collision occurred, the passengers were all thrown to the floor or against the seats of the oar. These facts do not seem to be in dispute.
The plaintiff in his main case also introduced evidence in support of allegations in the complaint that the water car was equipped with a defective and unsuitable brake chain. He and another witness, a Mr. Powell, who also was a passenger, testified that after the train was made up at Milford, and while it was standing near the platform of the depot, they ex
The first assignment of error is based upon the ruling of the court denying the defendant’s motion for nonsuit. It is urged that the motion should have been granted for the reason that plaintiffs case was predicated alone upon allegations of negligence relating to a defective and unsuitable brake chain on the water car; that because the plaintiff alleged the facts of such negligence with great particularity, before he was entitled to recover he was required to prove such, defect, and the defendant’s negligence with respect to it, substantially as alleged, unaided by and independent of any presumption of negligence arising from the circumstances of the breaking of the chain and of the collision; that the plaintiff failed in his proof, in that the evidence is insufficient' to show that the water car concerning which the plaintiff and his witness testified1 as having had a defective brake chain was in the train when it left Milford, and was the same car as collided with the passenger coach. Before it can be said that the ruling of the court was erroneous the appellant must necessarily maintain the affirmative of all these propositions. We think it has failed, not only as to one, .but as to all of them. The complaint consists of nine paragraphs, and covers nearly nine, pages of the printed record. It is not necessary here to set it forth at length. It charges negligence with respect to the defective brake chain with great particularity, and specifically points out the character of the defect. It also charges negligence with respect to the making of a flying switch under detailed circumstances. It also charges negligence in the management and handling of the cars by the defendant’s servants, and in their permitting one to collide with the other. The complaint is not open to the
We think the contention made that the evidence is insufficient to prove a defective brake chain on the water ear is likewise untenable. The only claim made in this regard is that because the witnesses would not swear positively that the car on which they saw the defective brake chain was the same car taken out of the train at “Old Hickory,” and which collided with the passenger coach, the proof was insufficient to show that it was the same car. The testimony of the witnesses on this point has already been referred to. We think it quite sufficient to justify a finding that it was the same car. Of course it was not impossible, after these witnesses examined the water car in the train at Milford, and before the train departed, that the defendant, unknown to them, might have switched that water car out of the train and put another Avater car in its place. That such was done is not probable, under the circumstances. No witness testified to such fact, nor is there anything in the evidence from -which the inference could be drawn that such was done. Because of its better knowledge, the proof of such fact would naturally be expected to come from the defendant rather than from the plaintiff) especially since it involved the proving of an affirmative by the defendant and a negative by the plaintiff. However, it is not essential', before a fact is made evident, that its existence be established by positive or conclusive evidence, especially when it pertains, as here, only to the identity of a thing. If such were the case, the' rule of evidence permitting the drawing of inferences and the deducing of facts from other facts is rendered useless. The fact that the chain broke, under all the circumstances of the case, was sufficient evidence of its defective or unsuitable character to make a prima fade case, and to cast the burden of explanation on the defendant. Though it were conceded that the plaintiff failed to prove the defective brake chain as alleged, he still was entitled to go to the jury upon the alleged acts of negligence
Aside from these considerations, tbe motion for nonsuit was properly overruled, because of tbe presumption of negligence arising- in conformity with tbe maxim “res ipsa lo-quitur.” That tbe plaintiff was injured by reason of tbe breaking of tbe chain and of tbe collision of cars operated and managed by tbe servants of tbe defendant while be was being transported as a passenger was amply shown by tbe testimony. Erom tbe facts and circumstances which tbe plaintiff showed in this regard a prima facie presumption arose that tbe accident was due to tbe negligence of the defendant or its servants. (3 Hutchinson on Carriers [3 Ed.], sections 1413, 1414; Moore on Carriers, p. 769; 3 Thompson, Com. on Law of Negligence, section 2754.) Had tbe plaintiff averred tbe relation of passenger and carrier, negligence in general terms arising from tbe breaking of tbe chain, and tbe collision of cars on which tbe plaintiff was being transported and which were operated and managed by tbe defendant’s servants, and a resulting injury, counsel for appellant concede that tbe evidence, in conformity with tbe maxim, was sufficient to1 let tbe case to tbe jury. But it is urged that, since tbe plaintiff made specific allegations of negligence with respect' to a particular defective and unsuitable brake and brake chain, be was required to prove such facts specifically as alleged by some direct evidence, independent of, and in addb
We have already held against the appellant on the first and second propositions assumed by it. We are also of the opinion that its contention cannot prevail as to the third. When it is shown that a person has sustained an injury under circumstances where the maxim referred to applies, he is not required in the first instance to prove any particular defect by 'evidence other than by the prima facie presumption, although the facts with respect to some defect are unnecessarily alleged with particularity in the complaint. All that the plaintiff here was required to aver and prove to entitle him to recover was the relation of passenger and carrier, that the accident through which he received his injuries was connected with the means or instrumentality used by the defendant in the transportation, and an injury resulting therefrom. When such facts were shown, a prima facie presumption arose that the accident was occas
Complaint is also made of tbe following charge: “In deciding this case I charge you are tbe sole and exclusive judges
We think tbe judgment of tbe court below should be affirmed. It is so ordered. Costs to respondent.