130 Tenn. 174 | Tenn. | 1914
delivered the opinion of the Court.
This is an action by Will Brown against George Gill and his brother to recover damages resulting from a boiler explosion. Brown, a youth thirteen years of age, was an employee of the Gills, though his duties were connected with attendance on the boiler, which ran a sawmill. The gist of the declaration is negligence in the operation of a very old and defective boiler.
The proof indicated that the boiler had been used for about forty years, that it was by force of the explosion blown into four parts, and that a rivet therefrom was found that had rusted.
At the close of the testimony there was.a motion interposed by the defendants below for peremptory instruction of the jury in' their favor which was disallowed by the trial judge, who thereupon submitted the
“If, in the language of the trial judge in the case-before us, when the killing is proved to have been done by the explosion of the defendants’ boiler, the-burden is thrown upon them to show that they were guilty of no negligence, and that the accident was unavoidable, ’ the owners of the boiler would be virtually held as insurers of the safety of others against damages arising from its use. At the same time the fact there was an explosion, which is not an ordinary incident of the use of a* steam boiler, ought to have some-weight, inasmuch as it may be out of the power of the aggrieved party in some instances to prove any more. The reasonable rule would seem to be that laid down by Judge Wallace as above (Rose v. Transportation Co. [C. C.], 20 Blatchf., 411, 11 Fed., 438), ‘that from the
"While not stated with the customary clearness of the writer of that opinion, we understand its meaning to be that where, from the nature and circumstance of the occurrence that has caused the injury, the maxim finds application, the burden of proof is hot shifted from the plaintiff to the defendant, nor is the plaintiff relieved of the burden of showing negligence; but further, that there may arise from the fact of explosion an “inference that, if due care had been employed by the party charged with care in the premises, the thing that happened amiss would not have happened,” and the jury be warranted in inferriiig some negligence in respect of management or condition.
The distinction has been made in the recent case of Sweeney v. Erving, 228 U. S., 233, 57 L. Ed., 815, where it is said:
“Such, we think, is the view generally taken of the matter in well-considered judicial opinions.”
Kay v. Metropolitan Street R. Co., 163 N. Y., 447, 57 N. E., 751, was an action by passenger against carrier, and the New York Court of Appeals said (163 N. Y., 453, 57 N. E., 752):
“In the case at bar the plaintiff made out her cause of action prima facie by the aid of a legal presumption (referring to ‘res ipsa loquitur’); but when the proof was all in the burden of proof had not shifted, but was still upon the plaintiff. ... If the defendant’s proof operated to rebut the presumption upon which the plaintiff relied, or if it left the essential fact of negligence in doubt and uncertainty, the party who made the allegation should suffer, and not her adversary. The jury were bound to put the facts and cir
In Womble v. Merchants’ Grocery Co., 135 N. C., 474, 47 S. E., 493, it was said that:
“The principle of ‘res ipsa loquitur’ . . . carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not, we think, raising any presumption in his favor, but simply entitling the jury, in view of all the. circumstances and conditions as shown by the plaintiff’s evidence, to infer negligence and say whether, upon all of the evidence, the plaintiff has sustained his allegation. ’ ’
The case of Young v. Bransford, supra, dealt with an injury to a stranger. ¥e need not discuss whether the distinctive doctrine involved in “res ipsa loquitur” can find application in the case of injury to an employee (as to which see notes to Fitzgerald v. Southern R. Co., 6 L. R. A. [N. S.], 337, and Byers v. Carnegie Steel Co., 16 L. R. A. [N. S.], 214), for the reason that the record of the instant case shows that in addition to' the mere physical cause of the injury, the explosion of the boiler, there was some proof of ante
The court of civil appeals erred in reversing the-judgment of the circuit court, and in sustaining the motion for peremptory instructions.
Reversed.