85 So. 257 | Ala. | 1920
Lead Opinion
Plaintiff's (appellant's) intestate and one Allio, a fellow servant, were working for the Alabama Dry Dock Shipbuilding Company in the hold of a steel vessel at 6 o'clock (normal time) in the afternoon of a day in August. Their business was to repair a broken rib in the vessel, a mine sweeper, which their employer was building for the government of the United States. There was water in the hold, and intestate stood upon a plank that had been placed for the purpose. The plank was wet. In response to a request from intestate, Allio handed to him an electric lamp, which, in order that it might be moved about as occasion required, was attached to a cord about 50 feet in length. At or near the point where the cord was attached to the socket of the lamp — an ordinary incandescent lamp — the wires constituting the cord were exposed; the insulating material having been worn away or otherwise destroyed. Allio took the light by the cord; intestate took hold at the bulb, or the basket protecting it. Intestate immediately received a shock, made an unsuccessful effort to disengage his hand from the lamp, and in a few moments died. It is not disputed that intestate died as the result of an electric shock received from the light, or rather the cord supplying it with current.
Plaintiff offered evidence tending to show that his intestate was up to the moment of his death a strong, healthy negro man, and an industrious worker, about 38 years of age, and never sick, except with an occasional malarial chill; that the lighting current used at the shipbuilding company's plant was furnished by defendant, and is the same as that used for lighting in buildings in the city of Mobile; that the defendant furnishes a current of 2,300 volts, which passes through a transformer by which, when properly performing its function, it is stepped down to a current of 110 to 120 volts; that in the shipbuilding company's plant the three-wire system is used, each of the outside wires carrying 110 to 120 volts, the middle wire being neutral, carrying no current; that if you touch one of the outside wires of a three-wire system you get a current of 110 to 120 volts, but if you touch the two outside wires you get 220 to 240 volts; that defendant furnished current to the shipbuilding company through a transformer fixed on a pole in the street to a meter at the point where the current passed into the shipbuilding company's plant; that the shipbuilding company distributed the current from the meter, and furnished all inside parts, equipment, and supplies, the cord with which plaintiff's intestate came in contact being a part of the apparatus furnished by the shipbuilding company for the use of its employés; that a current of 120 or 240 volts will not kill a man under ordinary conditions, but an expert witness, called by plaintiff, testified on cross-examination to his opinion that a current *320 of 110 to 120 volts may prove fatal under favorable circumstances, meaning, of course, circumstances conducive to the full development of the current in the person affected thereby; that the physical condition of the man is to be considered; that the salt in perspiration and a wet plank under foot would help the passage through a man of the full current to which he is exposed, but that he could get no current in excess of that carried by the wire; that a current of 220 volts would burn out a lamp made to use 110 to 120 volts immediately. This witness further on cross-examination testified that the lamps in use at the shipbuilding plant were 110 to 120 volt lamps, and that on the vessel where intestate was working the three-wire system was not used, and that the particular wire from which intestate received his shock carried only 110 volts, but the witness commonly spoke of the voltage used in such lamps, the ordinary incandescent lamp, as 110 to 120.
Evidence for the defendant went to show that the current being generated at its power house and passing along its primary wire to the transformer at the shipbuilding plant at the moment of intestate's injury, and uniformly throughout the day, carried a voltage in the near neighborhood of 2,300, as shown by a mechanical device which operated constantly, uniformly, and accurately; that the transformer was constructed to step the current down to a voltage of one-twentieth of the high-tensions current on the primary line; that the transformer had not been inspected prior to intestate's injury, but that any defect therein necessarily persists until a remedy is applied, and that, without any change in conditions, the current from the transformer to the shipbuilding company's meter was measured within an hour after the accident and showed a voltage of 118; that the lights in the plant were burning at the time of the test; and that no high-tension wires were crossed on the wire supplying current to the plant. This evidence for the defendant was uncontradicted, save by the inference which the plaintiff would draw from the fact that his intestate died as the result of an electric shock produced by the current generated by defendant and distributed over its wires. One of the expert witnesses testified that negroes were commonly supposed to be more sensitive to electric shock than whites; that is, negroes are better conductors of electricity, and for that reason more subject to harm from a current of given voltage.
This statement of the evidence will suffice for the purposes of the appeal. The trial court, upon defendant's request in writing, charged the jury as follows:
"The court charges the jury that, if they believe all the evidence in this case, they ought to find a verdict for defendant" — and that action of the court is assigned for error.
That count of the complaint which alone needs consideration at this time (count 1) alleged that plaintiff's intestate —
"was killed by reason of negligence on the part of the defendant [the Mobile Electric Company], or one of its servants or employés, in negligently charging, with a deadly current of electricity, a wire which was in such a position that the employés of the Alabama Dry Dock Shipbuilding Company were liable to come in contact therewith."
While defendant was required to exercise a very high degree of care in and about the generation and distribution of its current, it is not claimed that it was an insurer; nor is the operation of the general rule of law, that the party who charges another with culpable negligence must prove it, denied in the premises. In its most general aspect the argument for a reversal proceeds upon the proposition that the fact that plaintiff's intestate was killed by an electric current furnished by defendant was of itself evidence that the current so furnished was excessive and dangerous to human life. But in no case can negligence be assumed from the mere fact of an injury; always the burden of proving the negligence alleged rests upon the plaintiff. However, the foregoing statement, undeniably true though it is, takes no account of the doctrine of res ipsa loquitur, and upon that doctrine, or the doctrine expressed by that maxim, appellant relies, contending that, in the presence of that doctrine the general charge with hypothesis was error.
Appellant lays much store by the opinion in Turner v. Southern Power Co.,
"In many cases the maxim 'res ipsa loquitur' applies — the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain without further proof sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer."
Upon this text, substantially, the cases upon which appellant relies are founded. We do not take issue with the quoted text; we observe only that, in view of modern texts and our own cases, some further statement as to the rationale of its doctrine is desirable, and that where, as here, evidence in denial of the negligence charged has been introduced, an additional element needs to be *321 considered in determining the propriety of its application. In cases of this character we find frequent quotation of the following statement of the law from an English report, disclosing consideration of the additional element to which we have referred and a more adequate statement of the doctrine:
"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." Scott v. London Dock Co., 3 H. C. 596, a case in which a passer-by was injured by the falling of goods from a crane.
Similar language was quoted by Stone, C. J., in Georgia Pacific Rwy. Co. v. Love,
"Where it is shown that the accident is such that its real cause may be negligence of the defendant, and that, whether it is so or not, is within the knowledge of the defendant, the plaintiff may give the required evidence of negligence, without himself explaining the real cause of the accident, by proving the circumstances, and thus raising a presumption that, if the defendant does not choose to give the explanation, the real cause was negligence on the part of the defendant."
So much of the common language of the foregoing authorities as predicates the maxim in part upon the absence of explanation by the defendant leads to the question raised in the present case, viz. whether, in the presence of explanation by the defendant, the legal presumption expressed by the maxim persists as evidence in the cause. There are, of course, many accidents from which no presumption of negligence can arise (Byrne v. Boadle, 2 H. C. 721), and Wigmore speaks of the maxim in question as symbolizing the argument for a presumption of culpability on the part of the owner or manager of powerful machinery, harmless in normal operation, but capable of serious human injury, if not constructed or managed in a specific mode. Also, very justly, as we think, he indicates the nature and effect of the rule connoted by the maxim when he says:
"It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists with the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person."
In a leading New York case it was said that —
"Where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption." Elwood v. W. U. Tel. Co.,
Referring to the case just quoted, it is observed in the text of Moore on Facts that —
"By 'mere presumption' the court probably meant to designate those presumptions which are employed only to locate the burden of proof and which have no intrinsic value. Thus, the quotation from the New York case just cited was used in three cases [Murray v. Pawtucket Valley St. R. R. Co.,
Nevertheless, as the text points out, in the case of Gorman v. Hand Brewing Co.,
If Prof. Wigmore's statement of the rationale of the doctrine of res ipsa loquitur be sound, and we think it is, the result is to raise a rebuttable presumption of law, in the phrase of the New York case, supra, a "mere presumption" having no intrinsic value (Moore, supra), a presumption of which Chamberlayne in his treatise on the Modern Law of Evidence speaks as a presumption of administrative procedure which assumes, not the truth of an inference, but the existence of a fact (volume 2, §§ 1082-1085) — assumed, not because it necessarily follows upon facts in evidence, but because the chief evidence of the true cause of the injury charged is practically accessible to the party charged but inaccessible to the party injured. He says that —
"When evidence is introduced on the point covered by the presumption of law, it is now functus officio so far as sustaining the burden of evidence is concerned. It drops out of sight." Chamb., ubi supra.
And further:
"The presumption of law, as a rule of substantive law, is equally binding upon the jury. It constitutes in the substantive law what may be deemed a prima facie right. The jury can no more neglect it than they could fail to give effect to any other rule of law. When, however, the conflicting evidence upon which the *322 jury might reasonably act has been admitted" — meaning, we take it, evidence conflicting in itself, and not mere evidence in conflict with the presumption — "the entire question of weight becomes a question for the jury. The presumption of law has disappeared, as such. The judge is no longer entitled to rule that the inference of fact upon which it is based has a prima facie value. To do so, would be to comment upon the weight of conflicting evidence which is, in a majority of American jurisdictions, expressly forbidden." Chamb., ubi supra.
There are cases holding the presumption expressed by the maxim to have weight as evidence, but the best-considered authorities hold, we think, that it serves in the place of evidence only until evidence to the contrary has been adduced; that when evidence to the contrary has been adduced the maxim has spent its force and served its purpose. Note to State v. Kelly, Ann. Cas. 1913E, 974.
The cases cited in the brief for appellant, plaintiff, to the precise point here under discussion, are from other jurisdictions. Some of them support the contention to which they are cited; but considered in connection with the fact that the weight of the undisputed evidence for defendant in the present case was submitted to the jury by the instruction assigned for error, quite a number of the plaintiff's cases will be found upon analysis to be not inconsistent with our conclusion that the instruction was proper. That conclusion finds ample support in the decisions of this court. Thus in Louisville Nashville R. R. Co. v. Marbury Lumber Co.,
The language used in the foregoing cases, it may be, does not accurately observe the rule that the burden of proof never shifts, though the duty of going forward with the evidence frequently does shift as a result of prima facie proof or legal presumption (Starks v. Comer,
The brief for appellant points out that the testimony which went to show that the voltage of the current being furnished by defendant to the Shipbuilding Company's plant at the time of plaintiff's intestate's injury was not in excess of 110 to 120, and that for house lights a current of that voltage was usual and necessary, thus, if accepted by the jury, excluding the conclusion that defendant had been guilty of negligence, and leaving the solution of the question at issue to rest upon the proposition that intestate's death resulted from a disposition of circumstances (for which defendant was in no wise responsible) which operated to give an ordinary incandescent lighting current its utmost harmful effect upon plaintiff's intestate in conjunction, probably, with a peculiar susceptibility on his part to harm from an electric shock — that this testimony was furnished by experts, and hence that the jury was not bound to accept it. Andrews v. Frierson,
It is said in appellant's brief that the undisputed evidence showed that defendant maintained no system for inspecting its transformers, and that this was proof of actual negligence. Conceded; but the evidence also showed without dispute that the transformer was performing its appropriate function at the time of plaintiff's intestate's injury, so that the failure to inspect, so far as this particular case is concerned, was of no consequence.
We hold, therefore, that the trial court committed no error in giving the general charge with hypothesis.
Affirmed.
All the Justices concur. McCLELLAN and BROWN, JJ., concur in the conclusion only.
Concurrence Opinion
I concur in the affirmance of this judgment upon the ground, presented by the giving of the general affirmative charge (with hypothesis) for the defendant, that the wrong or negligence charged in the complaint was not shown to be the proximate cause of the injury and death of the intestate.
In the brief in support of the application for rehearing it is insisted that there is a conflict between the pertinent doctrine of Harris v. N.C. St. L. Ry.,
It results, therefore, that the doctrine declared in Robinson v. Crotwell and repeated in the opinion on present appeal supersedes the pertinent, pronouncement, to a different effect, in Harris v. N.C. St. L. Ry. The idea that the hypothesis to the general affirmative charge given for a party litigant still leaves the jury to determine the matter as an issue of fact is a distinct departure from the view, always prevailing in this court, that the giving of the general affirmative charge, with hypothesis, is a declaration of law by the court, just as its action in sustaining a demurrer to the evidence is a pronouncement of law by the court. Tabler v. Sheffield Land Co.,
Expert testimony is admitted for the sole purpose of enlightening the jury and aiding it in arriving at a correct conclusion in the premises, but not, though unimpeached, to control its judgment. See authorities cited on pages 149, 150, of 153 Ala., on pages 965, 966, of 44 South., and also Robinson v. Crotwell, supra. If, however, the doctrine of the opinion on present appeal and of Robinson v. Crotwell is accepted as still leaving to the jury the determination of the issue involved, it is evident that in such cases the party against whom the affirmative charge, with hypothesis, is given should be accorded an explanatory request that, though the affirmative charge, with hypothesis, has been given his adversary, still the jury is entitled to pass upon the evidence and to accord it such credit as their judgments approve.
BROWN, J., concurs in the foregoing. *324
Addendum
Application overruled. All the Justices concur.
