80 Md. 146 | Md. | 1894
Lead Opinion
delivered the opinion of the Court.
This appeal brings before us for consideration a single question, yet one of interest and some importance, the determination of which is not entirely free from difficulty. In the fall of 1892, whilst the defendant was passing from the place of his employment to his home, he walked ovér a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for twenty years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way.
As the plaintiff proceeded on his way to his home the defendant’s train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties ; when the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car and about a half a dozen fell upon him and broke one of his legs in two places and otherwise injured him. In the testimony he says, “he supposed there was a jar on the track.”
The case was tried before a jury, the Court, at the instance-of the appellee, instructing them “that upon the pleadings in the cause and the evidence given to the juiy the plaintiff was not entitled to recover.” If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.
Whilst the general rule undoubtedly is, that the burden of proof that the injury resulted from negligence on the part of the defendant, is upon the plaintiff, yet in some cases, “the very nature of the action may, of itself, and through the presumption it carries, supply the requisite proof.” Wharton on Negligence, par. 421.
Thus when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution which it readily could and should have done; and in the
Shortly after this decision, a similar case, that of Scott v. London Dock Co., 3 Hurl. & C. 596, was decided in the Exchequer Chamber. The plaintiff proved in this case that while in the discharge of his duties as a customs officer he was passing in front of a warehouse in the dock and was felled to the ground by six bags of sugar falling upon him. The Court said: “There must be reasonable evidence of negligence. But where the thing is shown to° be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”
Then followed the leading case of Kearney v. London, Brighton and South Coast Railway Co., L. R. 5, Q. B. 411. This case underwent great discussion with a view to the settlement of the true principle governing it. The facts were,
And, again, in the case of Briggs v. Oliver, 4 Hurl. & C. 403, the plaintiff, going to a doorway of a house in which the defendant had offices, was pushed out of the way by his servant, who was watching a packing-case belonging to his master and was leaning against the wall of the house. The plaintiff fell, and the packing-case fell on his foot and injured him. There was no evidence as to who placed the packing-case against the wall or who caused it to fall. The Court held that there was a prima facie case against the defendant to go to the jury.
We have made full reference to the foregoing cases as showing the views of the English Courts upon this question. These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiffs proof, in actions of this kind, should negative all possible circumstances which would excuse the defendant, but it is sufficient if it negatives all probable circumstances which would have this effect. Thompson on Negligence, 1229. It is also well settled that the cause of accident must be connected with the defendant, either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent. Higgs v. Maynard, 12 Jur. N. S. 705; Welfare v. L. B. & S. C. Ry., L. R. 4 Q. B. 693; Smith v. G. E. Ry. Co., L. R. 2 C. P. 10. When, however, there is no duty upon the plaintiff, as under the facts of this case, or when the duty which he has to perform has been performed by him, it is clear that the negligence of the plaintiff is out of the question, and if the accident is connected with the defendant the question whether the phrase “res ipsa loquitur” applies or not becomes a question of common sense. Whittaker's Smith on Negligence, 422.
The American cases sustaining the maxim res ipsa loquitur are numerous and to the point. In the case of Cummings v. The National Furnace Co., 60 Wis. 603, the defendant company
The leading American case, however, appears to be Mullin v. St. John, 57 N. Y. 567. The opinion of the Court was delivered by Dwight, C., and is a most able and exhaustive examination of the subject. He cites with approval many of the English and American cases, to which reference is made in this opinion. The case was one in which the walls of a building, without any special circumstances of storm or violence, fell into one of the streets of the city of Brooklyn, knocking down the plaintiff, who was >on the sidewalk, and seriously injuring her. The Court said: “There was some evidence tending to show that it was ■out of repair. Without laying any stress upon the affirmative testimony, it is as impossible to conceive of this building so falling, unless it was badly constructed or in bad repair, as it is to suppose that a seaworthy ship would go to the bottom in a tranquil sea and without collision. The mind necessarily seeks for a cause for the fall. That is apparently the bad condition of the structure. This again leads to the inference of negligence, which the defendant should rebut.”
To like effect are Lyons v. Rosenthal, 11 Hun. 46; Edgerton v. N. Y & H. R. R. R. Co., 39 N. Y. 227; Krist v. M. L. S. & W. R. Co., 46 Wis. 489; Smith v. Boston Gas Light Co., 129 Mass. 318; Claw v. National City Bank, 1 Sweeney, 539; Brehm v. Great Western, &c., 34 Barb. 256; Sullivan v. Vicksburg, Shreveport and Pacific R. Co., 39 La. Ann, 800; Hays v. Gallagher, 72 Pa. St. 136;
We have referred to numerous cases as illustrating the views which we entertain, because the question on this appeal has not heretofore been determined by this Court. Cases resting in contract have frequently received our consideration, and they are generally free from difficulty, because the mere happening of the accident will be prima facie evidence of a breach of contract without further proof, while in those not resting in contract “it mush-nofe-enly-appear that the accident happened, but, the surrounding circumstances must be such as to raise the presumption of a jFailure of duty^on the part of the defendant toward the ^plafnfiffi” Article, Res ipsa loquitur, by Judge Seymour!). Thompson in 10 C. L. J. 261. None of the cases herein relate to those resting in contract.
In all cases of the character we have been considering, the most careful scrutiny should be given to the circumstances attending the accident, and whilst an excellent authority has said that after all the question resolves itself into one of common sense, we would add that it should be of a high order. For it is unquestionably true that the authorities are by no means in accord on the question which arises out of the doctrine of res ipsa loquitur.
The facts of this appeal are very meagre, but they by no means lie on the border line, nor even close to it. Here you find the plaintiff traversing a path over which the defendant had no dominion, for the plaintiff was rightfully there. The defendant moves its cars over its roadway along said path, and from a gondola car there slips an half dozen railroad cross-ties falling upon the plaintiff and seriously injuring him.
The plaintiff was guilty of no negligence in being where he was at the time he was injured, and in so far as the defendant’s rights are involved, the principle is the same whether he was on the land of Mr. Walsh or on his own land. The accident happened at the hour of noon, as the
If the cross-ties had been properly loaded there existed no reasonable probability of their falling off. A cross-tie is defined to be a sleeper, connecting and supporting the parallel rails of a railroad. Stand. Diet. 444. Its figure and dimensions are familiar, and its flat suffaces and weight illustrate how readily they can be loaded so as to form an almost compact body of wood, if reasonable care be exercised in placing them on the flat bottom of the car, and proper latteral support be given them. If by accident, the ties had become displaced, it was a duty imeumbent upon the defendant and its servants to have readjusted them in such manner .as to have prevented the happening of an accident. It was the duty of the defendant and its servants to have carefully loaded said cross-ties upon its cars and it was equally its duty to have exercised reasonable care in seeing that its train was transported in such condition as to avoid all reasonable probability of injury.
If the presumption arising out of the doctrine of res ipsa loquitur finds proper application anywhere, we think this is a case in which it should be applied. In conclusion, taking the proof as we find it in the record, we think the case should have been permitted to go to the jury with proper instructions from the Court.
The judgment must be reversed.
Judgment reversed and new trial, awarded.
Dissenting Opinion
dissented and delivered the following opinion, in which Fowler, J., concurred:
I am constrained to dissent in this case, and I will state very briefly my reasons for the opinion I have formed.
The plaintiff was not a passenger. As I understand the repeated rulings of this Court it is the settled law in Maryland that when that relation does not exist no presumption of negligence can ever arise from the mere fact that an injury has been sustained. Something more must be shown. Where the defendant is under no contractual obligation to the plaintiff the mere occurrence of an accident resulting in injury furnishes no evidence of causative negligence on the part of the defendant. This principle is well illustrated in Hammock v. White, 11 C. B. N. S. 588. It is incumbent, therefore, on the plaintiff in such cases not only to show an injury, but also to show that the defendant had been guilty of some negligence which produced that injury. There must not only be negligence, but, between that negligence and the injury complained of, there must be the relation of cause and effect. Negligence which produces no inj ury furnishes no right of action, and an inj ury not caused by any negligence cannot justify a recovery. Proof, then, of both the injury and the negligence which caused it must be given. They are both indispensable constituents of the plaintiff’s case, and proof of the one cannot, in the absence of a contractual duty, establish the existence of the other, unless, in obedience to some unvarying physical law, you can say with unerring certainty that the given effect necessarily proceeded from a particular, exclusive cause. If, consistently with known laws, a particular effect could not exist, except as the result of a single cause, then, when the effect does
Now, in the case at bar, the only evidence is that as the freight train approached the plaintiff, who was walking towards it just outside the right of way, he thought he saw a jar on the track, as he expressed it, and the cross-ties fell off from the moving car when it was opposite to him, and struck and injured him. There is no evidence in the record that these ties had been improperly loaded on the car ; or to show when, where or by whom they were loaded; or how far they had been hauled; or to show that the car, upon which they had been loaded was out of repair; or that the track was not in proper and safe condition ; or that j
The cases relied upon by the appellant are distinguishable from the one at bar. Take, for example, the case of Byrne v. Boodle, 2 Hurl. & Colt. 726. There the barrel rolled out of the warehouse and fell upon a person rightfully passing along the public thoroughfare below, and though no evidence was offered to show what caused the barrel to roll out, the case was allowed to go to the jury upon the theory, I take it, that according to the fixed laws of dynamics it was physically impossible for the barrel to roll at all without the application of some force which must have been applied on the defendant’s premises, whilst those premises were so unguarded as to permit the barrel to roll out of the door. 1 Had the door not been left open, when it ought to have been closed, or at all events ought to have been protected by a servant or watchman, the barrel could not have rolled out as it did. Allowing the door to remain open or unguarded was an act of negligence. Now, negligence in
It does not follow that because the logs fell off the car they were negligently put on; for, though properly loaded, they may have become displaced, without neglegence, by the jarring incident to a moving train; or, by other means, they might have fallen without involving a breach of duty toward any one, and, therefore, without involving antecedent negligence. To conclude that there was negligence because an injury happened is to assume, as proved, the very fact to be proved. It seems to me, then, that some evidence tending to show negligence ought to have been adduced, and that the Court below was right in withholding the case from the jury upon the failure of the plaintiff to adduce such additional'evidence.
I am authorized by Judge Fowler to say that he concurs in these views.