161 Ky. 347 | Ky. Ct. App. | 1914
Opinion of the Court by
— Affirming.
In this action for damages for personal injuries by plaintiff, J. A. Lile, against defendant, Louisville Railway Company, the trial court, at the conclusion of the evidence, directed a verdict in favor of the defendant. Plaintiff appeals.
The facts are these: In the month of January, 1912, plaintiff was •employed by defendant as a motorman. He continued to work in this capacity until June 7, 1912. At the time of the accident he ran on the Hancock street
Plaintiff introduced defendant’s inspector, who testified that he inspected the car in question at about 9:30 a. m. on the day of the accident. All the wires were then in good condition. Neither this inspector nor the company’s chief inspector was able to say what caused
Plaintiff insists that this is a case calling for the application of the doctrine of res ipsa loquitur, and having proved the injury and the cause thereof, the evidence .for the defendant was not sufficient to overcome the presumption of negligence, but simply presented an issue for the jury.
While some courts take the position that the doctrine of res ipsa loquitur never applies in a case of master and servant, yet it is generally held that the doctrine does apply in such a case, but in a more restricted sense than in a case of -carrier and passenger, because of the difference in the degree of care imposed, and in the character of defenses that may he made. Marsow v. Rutland R. Co., 211 N. Y., 203, 105 N. E., 206, 51 L. R. A. (N. S.), 1221; Byers v. Carnegie Steel Co., 159 Fed., 347, 16 L. R. A. (N. S.), 214. A master is not required to furnish the servant absolutely safe appliances with which to work. H'e discharges the full measure of his duty when he exercises ordinary care to furnish appliances which are reasonably safe. When, therefore, the servant seeks'to recover for an injury growing out of defective appliances, the mere fact that a piece of machinery breaks is n'ot of itself sufficient to make out a prima facie case. It must, therefore', appear1 that the master knew of the defective condition of the machinery, or could have known of it by the exercise of ordinary care. Therefore, it is generally held in a case of master and servant that the inference of negligence is deducible, not from the mere happening of the accident, but from the attending circumstances. Vissman v. Southern Ry. Co., 28 Ky. Law Rep., 429. In Sherman & Redfield on Negligence, Section 59, the rule, which has frequently been quoted by courts with approval, is stated as follows:
“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 acci*351 dent 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 of negligence that the injured person is able to offer, or that it is necessary to offer.”
The rule has also been stated in the following language :
“There must he reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of the defendant, and the accident is such that, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” Breen v. N. Y. C. & H. R. Co., 109 N. Y., 297, 4 A. S. R., 450, 16 N. E., 60; City of Corbin v. Benton, 151 Ky., 483.
Viewed in the light of these principles, what does plaintiff’s evidence tend to establish? Nothing but the fact that the wire broke and that the wire, when inspected, was in proper condition. While there was proof to the effect that the accident might have happened by reason of too much slack in the wire, or too much friction, there was no proof that the accident did in fact result from either of these causes. It was. not shown that the wire was worn, or that there was anything to indicate that it was in a defective condition. Not only was there an absence of such evidence, but plaintiff proved affirmatively that the wire was inspected that morning, and there was then nothing in its condition to indicate any probability of its breaking. Here, then, we have a case where plaintiff not only failed to prove, from the attendant circumstances, that the accident would not have happened had defendant exercised proper care, but actually proved that the wires were inspected during the morning preceding the accident, and they were then in proper condition. In other words, he not only failed to raise the presumption of negligence from the attendant circumstances, but actually proved that proper care was exercised. It necessarily follows that plaintiff failed to make out his case. The rule above announced is not in conflict with the doctrine laid down in Huddleston’s Admr. v. Straight Creek Coal & Coke Co., 138 Ky., 506, where it was held that proof on the part of the master that the roof of the coal mine
It follows that the trial court properly directed a verdict in favor of the defendant.
Judgment affirmed.