38 A.2d 108 | D.C. | 1944
Appellant sued to recover for personal injuries sustained in a collision between a delivery truck of Ambassador Laundry, and a streetcar of Capital Transit Company on which she was a passenger. She joined both said parties as defendants. She charged negligence generally against the transit company and made certain specific allegations of negligence against the laundry company. In their answers the defendants admitted the collision, and each charged that the other’s operator was negligent.
Plaintiff’s testimony was limited to establishing her status as a passenger and proving her injuries. She told of the collision between the streetcar and the truck but said she did not know what caused it. She called as her witness the motorman of the streetcar who admitted having had a collision with a truck of the other defendant and identified the driver of the truck. She then called as her witness the driver of the truck who admitted the collision and identified the motorman. Neither operator was asked to tell how the collision took place. This constituted plaintiff’s entire case. Each defendant moved for an instructed verdict which was granted. Because different standards of care govern the defendants we shall discuss their liabilities separately.
I
As to defendant Ambassador Lamp-dry. Obviously there was no contractual relationship between appellant and this appellee. The driver of the truck was charged only with the duty of ordinary care. Appellant, charging a breach of that duty, was required affirmatively to prove some act of omission or commission on his part amounting to a want of ordinary care and to connect it as a causative factor to her injury.
Moreover the motorman and the truck driver were both in the category of hostile witnesses and were subject to be cross examined as such.
II
As to the Transit Company. A different and greater duty rested upon this appellee. It had contracted to transport appellant safely- to her destination. As we have said in an earlier case:
“Out of special solicitude for the safety of human cargo has grown the rule that a common carrier must exercise the highest degree of care in transporting passengers for hire. (Citing cases.) This means that proof of even slight negligence creates liability on its part. (Citing cases.)”
The streetcar was under the exclusive control of appellee’s motorman; appellant was so much inert freight with neither right nor duty to interfere with its operation. This gives rise to the res ipsa loquitur doctrine. It does not relieve a plaintiff of proving negligence. It merely re-arranges che method of establishing such proof. As was said in Sullivan v. Capital Traction Co., 34 App.D.C. 358, 370, quoting from Gleeson v. Virginia Midland R. Co., 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458:
“The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that acident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” (Emphasis supplied.)
And in the later case of Robertson v. Washington Ry. & Electric Co., 51 App.D.C. 311, 279 F. 180,184, the Court, quoting from Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.l914D, 905, said:
“In our 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 they forestall the - verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plamtiff." (Emphasis supplied.)
The Court went on to point out that by establishing her injury the plaintiff gave ground for the reasonable inference that if the company had exercised due care the injury would not have happened. The opinion made it clear that plaintiff’s showing gave ground for the inference of negligence but did not compel it; and that since it did not compel it the question of negligence was for the jury. That we think is the situation of this case.
The Transit Company relies upon Brown v. Capital Transit Co., 75 U.S.App.D.C. 337, 127 F.2d 329, 330 and stresses the following language in the opinion:
“Where the res ipsa loquitur doctrine is applicable, it means no more than that the party claiming damages has produced proof of a fact, or a series of related facts, which warrant the inference of negligence, not that they compel such an inference. The rule is so stated by the Supreme Court in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 [Ann.Cas. 1914D, 905]. Where, as here, it is a matter of surmise that the damage was due to a cause for which the defendant is liable, the doctrine is inapplicable. If causes other than the
As we read the Brown case, the Court did not there depart from its earlier decisions from which we have quoted above, and which were in turn based upon applicable decisions of the- Supreme Court. It seems to us that the opinion merely restated the res ipsa loquitur doctrine in different language. Moreover, the facts in that case were clearly different from those before us here. There the plaintiff had charged negligence specifically, but had proved nothing except a fall; here negligence was charged generally and plaintiff proved a collision, thereby casting the burden of explanation upon the carrier.
Without a doubt appellant’s case would have been stronger, as we have already pointed out above, had she gone into the camp of the enemy for ammunition. Her failure to do so has cost her a directed verdict as to the laundry company. It need not and should not as to the transit company. As to that company, it affects only the weight of the evidence and not her right to get to the jury.
“Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life.”
Affirmed as to appellee, Lyle O. Cook, Trading as Ambassador Laundry, with costs against appellant.
Reversed and remanded for new trial as to appellee, Capital Transit Company, with costs against said appellee.
MacLachlan v. Perry, 63 App.D.C. 24, 68 F.2d 769; Feiffer v. Mann, 64 App.D.C. 230, 76 F.2d 1000.
Dumas v. Clayton, 32 App.D.C. 566; Bradley v. Davidson, 47 App.D.C. 266, 284; Wigmore on Evidence, 3rd Ed., Section 916.
Birchall v. Capital Transit Company, D.C.Mun.App., 34 A.2d 624, 625; see also Francis v. Fitzpatrick, 67 App.D.C. 69, 89 F.2d 813.
For eases dealing- with this problem generally, see annotation in 83 A.L.R. 1165.
Sullivan v. Capital Traction Co.; Robertson v. Washington Ry. & Electric Co., both supra.
Sullivan v. Capital Traction Co., supra.
Pokora v. Wabash Ry. Co., 292 U. S. 98, 54 S.Ct. 580, 582, 78 L.Ed. 1149, 91 A.L.R. 1049.