162 P. 83 | Utah | 1916
Tbe plaintiff, in substance, alleges that it is the owner of and operates a certain line of railroad in Utah, and that in 1912 it also owned and operated a certain branch line known as the Sandy Branch, which extended about three miles easterly from its main line at Midvale, Salt Lake County; that on November 8, 1912, at defendant’s request, the plaintiff delivered to the defendant for its use at a point on said Sandy Branch about three miles distant from said Midvale two empty cars; that the defendants after it had loaded one of said cars, carelessly and negligently permitted said two cars to escape and run down plaintiff’s track, which is on a declining grade from the point where said cars were placed to be loaded, to Midvale; that said ears ran into and damaged other.cars, to the plaintiff’s damage, etc.
The defendant answered the complaint, admitting the placing of the cars, that they escaped, and that plaintiff was thereby damaged to a certain amount, and denied all other allegations of the complaint. The defendant also pleaded some affirmative defenses, which, in view of the ruling of the district court, are not material now.
Upon the foregoing issues the parties entered upon a trial of the case.
In support of its allegations the plaintiff, in substance, proved that a “day or two before November 9, 1912,” one of plaintiff’s trainmen placed two empty cars on a siding or spur track on the Sandy Branch aforesaid which was used by the defendant to load the rock or stone taken from its quarry which was some miles distant from the siding; that the siding was used by the defendant in common with other patrons of the plaintiff for loading and unloading freight; that the siding or spur track aforesaid was laid on an incline of between four and six per cent.; that the defendant had erected a derrick at the siding or spur track which it used in loading the rock produced in its quarry onto the cars,
After producing the foregoing evidence, the plaintiff rested, and the defendant interposed a motion for a nonsuit upon various grounds, among others, that the plaintiff had failed to establish any negligence on the part of the defendant, and, further, that it had failed to prove what or who had caused the ears to escape. The district court sustained the motion, entered judgment dismissing the action, and the plaintiff appeals. The only error assigned is the granting of the motion for a nonsuit.
It seems quite clear that, if the proof of negligence in this case is to be governed by the ordinary rules of evidence which generally control in negligence eases,' the evidence is insufficient to establish either the defendant’s negligence or what or who caused the two ears to escape. Counsel for plaintiff, however, contend that under the undisputed facts of this case the maxim res ipsa loquitur applies in their client’s favor, and hence the evidence was sufficient to establish at least a prima facie case of negligence on the part of the defendant,
As we have seen, the transaction in this case is not essentially different from what it must necessarily be between a common carrier of freight and the shippers of articles that are produced or shipped in large quantities over the line of railroad owned and operated by the carrier. Here the defendant-had a stone or rock quarry which was a few miles off from the railroad. In order to get the rock to market the defendant was compelled to transport them on plaintiff’s cars. To accomplish that purpose the defendant had erected a derrick at plaintiff’s siding or spur track aforesaid by means of which the rock were loaded on the flat cars of the plaintiff. The derrick was so arranged that only one flat car could be loaded at the same time, and when one car was loaded it had to be moved forward so as to make room for another to be loaded at the derrick. As the rock were hauled from defendant’s quarry they were thus, by means of the derrick, transferred or loaded upon the flat cars furnished by the plaintiff to the defendant at the siding or spur track aforesaid. Now, counsel contend that all' that plaintiff was required to prove was that the two cars were placed at the siding at the request of the defendant for the purpose aforesaid; that the cars and brakes were in good condition when they were so placed there; that the brakes were properly set; and that they were sufficient to hold the cars at rest on the siding while being loaded in the ordinary and usual manner by means of the derrick. The cars, it is contended, were thus in defendant’s possession and under its immediate management and control, and, in view of the fact that they escaped and ran down the track, the presumption arises that they did so by reason of something the defendant did which it should not have done or something it omitted to do which it should have done, and hence a prime facie case of negligence is made out. Counsel cite and rely upon the following cases in support of their contention : Byrne v. Boable (Eng.), 2 H. & C. 596; Scott v. London, etc., Dock Co. (Eng.), 3 H. & C. 596; Kearney v. London, etc., Ry. Co. (Eng.), L. R. 5 Q. B. Cas. 411; Sweeney v. Erving, 228 U. S. 238, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann.
It is not necessary for us to pause to review the foregoing cases. It is sufficient to say that all of them are correctly decided and that the maxim of res ipsa loquitur is there correctly stated and applied. Neither is it necessary for us to again discuss the conditions under which the maxim ordinarily applies. Those conditions are sufficiently illustrated in the cases of Dearden v. Railroad Co., 33 Utah 147, 93 Pac. 271; Paul v. Salt Lake City Ry. Co., 34 Utah 1, 95 Pac. 363; Christensen v. Railroad, 35 Utah 137, 99 Pac. 676, 20 L. R. A. (N. S.) 255, 18 Ann. Cas. 1159. Counsel, however, do not contend that in any of the cases referred to the facts were like those that control the case at bar, but what they do contend is that the undisputed facts bring this case within the maxim.
We cannot yield assent to that contention. In our judgment the contention is fallacious in that it assumes, a very essential element, namely, that the two cars at the time they escaped, were under the immediate control and management of the defendant; and upon that assumption they base another, namely, that the defendant did or omitted something which caused the cars to escape. It is quite true that, if a passenger is injured while he is on the train of a common carrier which collides with another train, the maxim of res ipsa loquitur applies, because the train and the track on which it was operated and on which the passenger was injured were under the immediate control and management of the carrier, and hence the presumption may well be indulged that the collision was caused by something done or omitted by the carrier. Where, however, as here, the carrier merely places a car upon a siding owned and operated by him, and to which other shippers and the public generally have access, and which car is placed there for the convenience of a particular shipper to
That the defendant was not necessarily in the actual control or management of the cars at the time they escaped, and that for that reason the maxim of res ipsa loquitur does not apply, is illustrated in the case of Christensen v. Railroad, supra. While in that case the train was clearly under the immediate control and management of the railroad company, yet the car door, the instrumentality which there caused the injury, was not necessarily under the company’s immediate control and management at the time the door was closed, the closing of
It is suggested, however, that one. of the cars was in fact loaded, and that it was thus shown that the defendant had used it for the purpose for which it was placed on the siding. As we have seen, however, counsel insist that the mere fact that the cars were placed on the siding at the request of the defendant and for its use was sufficient to place them entirely within its control and management, and that in view of that fact the presumption arises that they were caused to move by reason of defendant’s fault. In view of that contention, the fact that one of the cars was loaded is only of secondary importance; since that fact would only strengthen the presumption contended for by counsel, but would not give rise to it. We have pointed out, however, that merely to place the cars
The judgment is affirmed, with costs to respondent.