130 Va. 286 | Va. | 1921
delivered the opinion of the court.
This is a proceeding by motion by J. W. Beard against Walker D. Hines, Director General of Railroads, to recover damages for a personal injury. The plaintiff, Beard, was a passenger on a passenger train operated by the defendant, and the alleged injury was the result of the derailment of the coach in which he was being carried as a passenger for hire. There was a verdict for the plaintiff for $2,000.00 which the trial court refused to set aside, and upon which it entered judgment for the plaintiff.
About eighteen months before the accident the plaintiff had a severe operation upon his abdomen which was found to be in a cancerous condition, but on a recent visit to the
The giving of instruction 2 on the motion of the plaintiff is assigned as error because it does not correctly state the law even if it be conceded that the notice sufficiently charges general negligence. Instruction No. 2 is as follows :
“The court instructs the jury that the burden of proof is upon the plaintiff, but he is not required to point out any specific act of negligence, and if you shall believe from the evidence that the plaintiff was injured while a passenger on defendant’s train on the 19th day of September, 1919, by the derailment of the car in which he was a passenger, the presumption of the law is that the accident was caused by the negligence of the defendant; and while this pre*292 sumption may be rebutted by evidence tending to show that the defendant before the accident exercised the highest degree of care known to human prudence and forethought to prevent the accident, and exercised such care to maintain its roadbed, ties and rails in proper repair, and by the inspection of its cars by competent persons, to see that they were in good order, and that it was handling its train at the time of the accident in a careful and prudent manner, unless you believe from the evidence that the defendant has done all of these things, you will find for the plaintiff.”
This instruction put upon the defendant the burden not merely of rebutting the presumption of its negligence, but of doing so in a particular manner, that is by evidence tending to show that before the accident the defendant had done certain -things, among them had caused an “inspection of its cars by competent persons, to see that they were in good order” and concluded by saying “Unless you believe from the evidence that the defendant has done all of these things, you will find for the plaintiff.” If the derailment had occurred from defective wheels or running gear of the train, or if it might have occurred from that cause, the instruction on this question would have been proper, but the uncontradicted testimony is that on the day of the derailment and after it had occurred a careful examination was made of the wheels and of every part of the running gear of the train which could have contributed to the derailment, and they were found to be in excellent condition. A prior inspection, therefore, would have disclosed nothing for the defendant to remedy, and it was error to tell the jury, if it was not made, they must find for the plaintiff. The undisputed testimony shows that the defendant was not negligent in this respect. The instruction was intended as an application of the doctrine of res ipsa loquitur to the facts of the case, but imposed upon the defendant a greater burden than it was required to bear. The first part
“Much ink has been shed” in the discussion of the doctrine of res ipsa loquitur, and we doubt if we can add anything new to the discussion. Text books and notes to cases are filled with it. By way of illustration, see Thompson on Negligence secs. 3883, 3886, 3909, 7635, 2 Cooley on Torts (3rd ed.) pp. 1424-28; 29 Cyc. 590, 10 Corpus Juris 1023, Hughes v. Atlantic City & S. R. Co., 85 N. J. Law ,212, 89 Atl. 769, L. R. A. 1916 A, 927, 20 R. C. L. 184, 113 Am. St. Rep. 986.
In Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann. Cas." 1914D, 905, it is said: “In oür opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that
“Such, we think, is the view generally taken of the matter in well considered judicial opinions.
“Kay v. Metropolitan St. R. Co., 163 N. Y. 447, 57 N. E. 571, was an action by a passenger against a carrier, and the New York Court of Appeals said, (163 N. Y. 45) '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 a,ll 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 that allegation should suffer and not her adversary. The jury were bound to put the facts and circumstances proved by the defendant into the scale against the presumption upon which the plaintiff relied, and in determining the weight to be given to the former as against the latter they were bound.to apply the rule that the burden of proof was upon the plaintiff. If, on the whole, the scale did not preponderate in favor of the presumption, and against defendant’s proof, the plaintiff had not made out her case, since she had failed -to meet and overcome the burden of proof.’ The rule thus declared has since been, adhered to in the courts of New York. (Citing cases.) A similar view appears to be entertained in New Hampshire. (Citing cases.) The same rule has been followed in a recent series of cases in the North Carolina Supreme Court. (Citing cases.)
To the same effect see Norfolk & W. R. Co. v. Tanner, supra; Norfolk-Southern R. Co. v. Tomlinson, 116 Va.
We do not wish to add to the burden of the profession by any extended comment, but will state briefly our conclusion, as derived from our own cases and the decisions of other courts, confining what we have to say to the application of the doctrine to cases of derailment of passenger coaches of railroads, where general negligence is charged. We shall also avoid the use of the term “burden of proof,” about which so much confusion has arisen.
For the error appearing in instruction No. 2 the verdict and judgment for the plaintiff in the trial court will be set aside and the case remanded for a new trial in conformity with the views expressed in this opinion.
Reversed.