130 Wash. 302 | Wash. | 1924
On the afternoon of March 20, 1923, A. Donnett was engaged as driver in the operation of a Ford delivery truck, in the employment of the Public Market Delivery & Transfer, a corporation, the owner of the truck, in Seattle. The place of business of the
There is neither complaint nor evidence of any fault on the part of the respondents; nor is there any evidence of the intervention or meddling of a third party with the automobile after the driver left it in front of the office window until the collision happened.
The first assignment is that the court erred in denying appellants’ motion for a judgment notwithstanding the verdict. There is no testimony other than that the truck was on and facing a down grade at the time the driver left it to go into the office; and while the proof on behalf of the appellants was to the effect
The law applicable to a case of this kind is pretty well settled and has been fully expressed in a number of decisions by this court. In the case of Abrams v. Seattle, 60 Wash. 356, 111 Pac. 168, this court cited with approval from Jaggard on Torts, as follows:
“ ‘. . . When the physical facts surrounding an accident in themselves create a reasonable probability that the accident resulted from negligence, the physical facts themselves are evidential, and furnish what the law terms evidence of negligence, in conformity with the maxim “Res ipsa loquitur.” It would seem more accurate to say, not that negligence is presumed from the mere fact of the injury or accident, but, rather, that it may be inferred from the facts and circumstances disclosed, in the absence of evidence showing that it occurred without negligence. ’ ’ ’
In Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 Pac. 941, 42 L. R. A. (N. S.) 1070, attention was called with approval to the rule stated in 1 Shear-man & Redfield, Negligence (5th ed.), § 59, as follows:
“When a thing which causes injury is shown to be under the management of the defendant, 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 a want of care.”
In the case of Oberg v. Berg, 90 Wash. 435, 156 Pac. 391, which was a case of a runaway car without a
“These observations of the learned authors were quoted with approval by this court in Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 Pac. 941, 42 L. R. A. (N. S.) 1070, and we think are decisive in support of appellant’s contention. We have seen that Union street at this point is of such a grade that an automobile standing thereon must be secured in place with considerable care to prevent it running down the street by the force of gravity alone, and that the machine had been brought to rest by respondent a very short time before it did start and run over appellant. It also seems plain, as shown by the evidence, that, had the machine been properly secured, it would not, by the force of gravity alone, have started. In the light of these considerations, we think the jury might have concluded, as reasonable men, that the machine started by the force of gravity alone and because of respondent’s negligence in not properly securing it when he left it. While it may be conceded that these facts standing alone would not make a very convincing case against respondent, we think it cannot be said that reasonable minds might not differ as to the proper conclusion to be drawn therefrom.”
To the same effect see: Graaf v. Vulcan Iron Works, 59 Wash. 325, 109 Pac. 1016; Briglio v. Holt & Jeffery, 85 Wash. 155, 147 Pac. 877; Sweeney v. Erving, 228 U. S. 233, 57 L. Ed. 815.
In this case, in addition to those things which according to the rule afford reasonable evidence, in the absence of explanation by the appellants, that the accident arose from a want of care, there is positive evidence, as already stated, that the brakes on the truck were defective. The case was, in our opinion, one for the jury.
The next assignment complains of an instruction, first, pertaining to appellants’ care of the braking equipment on the truck, there being no allegation with
“The proper instructions as to the application of the presumption would be thus: The jury should be instructed that the burden of proof is upon the plaintiff to establish all the controverted allegations of his complaint by a fair preponderance of the evidence, and defining preponderance of the evidence; that when a situation is shown which necessarily infers negligence on the part of defendant, or res ipsa loquitur, the burden then devolves upon defendant to furnish an explanation or rebuttal of that presumption of negligence, by producing evidence of his due care and proper precaution, under the circumstances and conditions necessarily within defendant’s exclusive control. If then, after considering such explanation, on the whole case and,on all the issues as to negligence, injury and damages, the evidence still preponderates in favor of the plaintiff, plaintiff is entitled to recover; otherwise not.”
Another assignment is that the court refused appellants’ requested instruction to the effect that, under
The remaining assignments of error are answered against the contention of appellants by what has already been said herein.
Judgment affirmed.