32 Del. 177 | Del. Super. Ct. | 1923
delivering the opinion of the Court:
We will consider together the objection that the plaintiff has not set out any particular acts of negligence on the part of the
Why should it be incumbent on the plaintiff to set out aiiy specific act of negligence ? He has alleged that the defendant owned and operated the electric wire in question for the transmission of electricity for commercial purposes such as light, heat and power; that the wire broke and electricity escaped therefrom and seriously injured the plaintiff then upon his own premises and without negligence on his part. These facts are admitted by the demurrer.
While it is true that the mere fact of injury will not give rise to a presumption of negligence, and it is also true that he who relies upon the negligence of another to entitle him to recover in an action against such negligent person, must allege and prove such negligence, yet there are certain principles and doctrines which may be taken into consideration. One of these is the doctrine of “res ipso loquitur." The phrase literally means “the thirig speaks for itself,” but a more helpful explanation of it would be that the doctrine applies whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. 20 R. C. L., p. 187.
It will be readily seen from this definition that the doctrine rests upon a, foundation formed of presumptions and facts which
Presumptions arise from the doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happened in the past, under the same conditions, will probably happen in the future and ordinary and probable results will be presumed to take place until the contrary is shown. 20 R. C. L. 186; Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146.
To this presumption certain elements of fact must be added. The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause and finally that the cause of injury was something out of the usual order. The presumption here exists and the facts are here present and admitted by the demurrer so that the sole question on this branch of the case is whether the doctrine of res ipso loquitur applies to a case of this kind. The authorities are so numerous and so surprisingly uniform in sustaining such application that the difficulty is one rather of selection for citation. Pennsylvania alone, with tke possible exception of Michigan, runs counter to the general current of authorities, and the Pennsylvania decisions are by no means harmonious and consistent.
In Curtis on Law of Electricity, § 594, it is said:
“If a wire suspended in a street or highway or other place falls or sags from its normal position and an injury is thereby occasioned, it is generally held that the rule res ipso loquitur is applicable and the injured person is entitled to recover for his injuries against the party maintaining the wire unless the latter rebuts the inference of negligence. Or stating the principle in other words, the fact that a person while travelling along a public highway, is injured by contact with a highly charged electric wire, raises a presumption of negligence on the part of the company maintaining the wire.”
In 9 R. C. L., p. 1221, it is said:
*182 “The mere introduction of the facts surrounding an injury from electricity, showing that such injury resulted from contact with live electric wires or other appliances when out of proper condition or out of their proper place, may suffice, under this doctrine of res ipso loquitur, to raise a prima facie presumption that thé electrical company having such appliances in charge has been negligent in the performance of its duty and to place upon the company the burden of overthrowing such presumption.”
In 10 A. & E. Encylopedia of Law (2d Ed.) 874, it is said:
“While, as a general rule, negligence is not to be presumed, it has been held that where a person has been injured by coming in contact with an electric light wire which had fallen into the street negligence might be presumed in the absence of something appearing in the case to repel that presumption.”
To the same effect, with the citation of many cases, is 2 Cooley on Torts (3d Ed.), p. 1424, etc.
Indeed it is not necessary to seek examples beyond our own state except for the purpose of showing the support our own decision has had both in reason and authority.
In Wood v. Wilmington City Ry. Co., 5 Penn. (21 Del.) 369, 64 Atl. 246, it is said:
“Negligence is never presumed; it must be proved. The plaintiffs, however, in this case claim the benefit of the doctrine of res ipso loquitur-, that is, that the accident itself, with all its surroundings, speaks in such a way and is of such a character as to show negligence on the part of the defendant company. And that imposes upon it the burden of rebutting such negligence by proof. * * * Where an electric railway is under the control and management of a company, and the accident is of such a character as to show that it could not have happened in the ordinary course of events under reasonably careful management, it affords some evidence, in the absence of any explanation, that the accident arose from the want of care,” etc.
The almost uniform decisions to the same' effect from more than a score of jurisdictions are collected in the following citations: Curtis on the Law of Electricity, § 594; 9 R. C. L.,p.l221; Walter v. Baltimore Elec. Co., 109 Md. 513, 71 Atl. 953, 22 L. R. A. (N. S.) 1178 and note; Western Coal & Min. Co. v. Garner, 87 Ark. 190, 112 S. W. 392, 22 L. R. A. (N. S.) 1183, and note; Jacob Doll & Sons, Inc., v. Ribetti, 203 Fed. 593, 121 C. C. A. 621; 5 N. C. C. A. 1-51.
This case must not be confused with those collision cases such as Campbell v. Walker, 1 Boyce (24 Del.) 580, 76 Atl. 475, and Silvia v. Scotten, 1 W. W. Harr. (31 Del.) 290, 114 Atl. 206, where the act of negligence that caused the collision was itself the cause of
The “averment of the fact of a collision, without stating the particular act of negligence that caused it, may be sufficient in those exceptional cases where by reason of the relation of the parties, the law places upon one a high duty to prevent injury to another, or where the act itself bespeaks the negligence of its cause.”
The courts of many states where the doctrine of res ipso loquitur applies have not clearly differentiated between the presumption of negligence of the defendant and the shifting of the burden of proof, and many cases have cast this burden on the defendant. It is perhaps not accurate to say that the burden of proof is on the defendant to show that the accident is not the result of his negligence, but the accident itself makes a prima facie case of negligence and casts upon the defendant the burden of explanation — the burden of rebutting the inference that it has failed to use due care. This distinction is clearly pointed out in the note to Cleveland, C., C., etc., R. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1.
We now finally come to the objection that the first and second counts do not expressly aver a “duty” resting upon the defendant, and no facts are stated from which a duty can be implied and also that in the third count a “duty,” as such, is alleged with which the defendant cannot be charged. In every case of actionable negligence, of course, there must be three elements, (1) the existence of a duty on the part of the defendants not to subject the plaintiff to the injury of which he complains, (2) a failure by the defendant to observe that duty and (3) an injury to the plaintiff.
While it is necessary that these elements appear in every case, there is no necessity that the duty, as such, be alleged in these very terms. Such allegation is surplusage, since, if the facts stated raise the duty, the allegation is unnecessary; Deluchio v. Shaw, 1 W. W. Harr. (31 Del.) 509; if they do not, such allegation is unavailing. Seymour v. Maddox, 16 Q. B. 326, 117 Eng. Reprint 904; Brown v. Mallett, 5 C. B.599; 136 Eng. Reprint 1013; Jensen v. Wetherell, 79 Ill. App. 33; Hewison v. City of New Haven, 34 Conn. 136, 91 Am. Dec. 718.
Since a declaration in an action for a negligent breach of duty need only state the facts upon which the supposed duty is founded with the breach of which the defendant is charged, and since in this case we have already reached the conclusion by the application of the doctrine of res ipso loquitur that the declaration does state facts from which negligence may be presumed, we now hold the declaration sufficient and overrule the demurrer.