135 Tenn. 462 | Tenn. | 1916
delivered the opinion of the Court.
The court of civil appeals affirmed a judgment rendered by the circuit court of Shelby county in favor of Cavell for the sum of $8,500, against the railway company, and the latter, by its petition for certiorari, seeks a review and reversal of the judgment of the court of civil appeals.
We will first consider the assignment upon the hypothesis that when the evidence was all in there was an open issue of fact on the question of defendant’s negligence for the jury to determine.
The declaration was in one count and on the facts of the case, and showed the relation of passenger and carrier to have existed between plaintiff and the company when the injuries were inflicted for which he sued, and that the damages.sought resulted from a breach by the carrier of the duty which the law imposed upon it when plaintiff was accepted as a passenger.
The declaration also averred divers particulars in which the servants of the company were negligent in the discharge of the duty so imposed. The company interposed its plea of the general issue.
The degree of care imposed on the carrier by law and on grounds of sound public policy is the exercise of the “utmost diligence, skill, and foresight.” Ferry Companies v. White, 99 Tenn. (15 Pickle), 256, 41 S. W., 583; Railroad v. Flake, 114 Tenn. (6 Cates), 671, 88 S. W., 326; Railroad v. Kuhn, 107 Tenn. (23 Pickle), 106, 64 S. W., 202.
The doctrine laid down by Sir James Mansfield as to the degree of care required in such cases is that the duty of the carrier is to provide for the safety of its
“Since the decision in Stokes v. Saltonstall, 38 U. S. (13 Pet.), 181, 10 L. Ed., 115, and N. J. R. &. Transp. Co. v. Pollard, 89 U. S., 22 Wall., 341, 22 L. Ed., 877, it has been settled law in this court that the happening of an injurious accident is, in passenger cases, prima fade evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidably by human foresight.” Gleason v. Va. Midland Ry. Co., 140 U. S., 435, 11 Sup. Ct., 859, 35 L. Ed., 458.
But qualifying the doctrine of this case as to the burden of the evidence, see Sweeney v. Erving, 228 U. S., 233, 33 Sup. Ct., 416, 57 L. Ed., 815. As to the degree of care, see, also, Inland & Seaboard Co. v. Tolson, Adm’r, 139 U. S., 551, 11 Sup. Ct., 653, 35 L. Ed., 270. See, also, the authorities collated in a note accompanying Chicago Union Traction Co. v. Mee, 218 Ill., 9, 75 N. E., 800, 2 L. R. A. (N. S.), 725, 4 Ann. Cas., 7.
In general mere proof that an accident injurious to plaintiff has occurred does not justify a verdict or judgment imposing liability therefor upon the defendant.
The maxim is ei qui affirmat, non ei qid meg at, incumbit probatio. Not only so, but the law imposes on the plaintiff the burden of showing the two essential elements of liability above mentioned by a preponderance of the evidence, and another burden imposed on the plaintiff is that his proof must in substance correspond with the averments of his pleadings.
As a general rule, proof that an accident injurious to plaintiff has happened, without more, is not evidence of negligence, and of course until the existence of negligence is shown no. one is responsible for the injury, and in such case it is the plaintiff’s misfortune. But while the law imposes the burdens we have mentioned, “when a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care.” In the same case it is further said:
“If the act which caused the injury was shown by direct evidence, and all the circumstances of the accident were shown in the proof, and if the only reasonable explanation of the accident should give rise to an*468 inference of negligence, then the rule of ‘res ipsa loquitur’ would apply; but there can be no foundation for the application of this maxim where both the act which caused the injury and the negligence of defendant in relation to the act must be inferred from the accident itself. Ton cannot well say .that an act is negligent, unless you know what it is. It is said in one case that the maxim under consideration can have no application where the injured persori and the alleged negligent person were both in the exercise of .an equal right and were each chargeable with the same degree of care.” De Glopper v. Railway & Light Co., 123 Tenn. (15 Cates), 633.
Some of the English cases discussing the application of the doctrine are: Per curiam, 3 H. & C., 601; per Bovil, C. J., Simpson v. Lond. Gen. Omnibus Co., L. R., 8 C. P., 390, 392; 42 L. J. C., p. 112; The Annot Lyle 11 P. D., 114; 55 L. J. Adm., 62; The Indus, 12 P. D., 46; 56 L. J. Adm., 88; Carpus v. L., B. & S. C. R. Co., 5 Q. B., 747; Skinner v. L. B. & S. C. R. Co., 5 Exch., 787; Scott v. London Dock Co., 3 H. & C., 596; 34 L. J. Ex, 220; Kearney v. L. B. & S. C. R. Co., L. R., 5 Q. B., 411, L. R., 6 Q. B., 759, 40 L. J. Q. B., 285; Byrne v. Boadle, 2 H. & C., 722. See, also, Briggs v. Oliver, 4 H. & C., 403; and per Lord Halsbury (1891), A. C. 335; Broom’s Legal Maxims, pp. 253, 254.
“The accurate statement of the law is not that negligence is presumed, but that the circumstances amount to evidence from which it may be inferred by the jury. In cases where the duty is not absolute, like that of the
See, also, Hutchinson on Carriers (3d Ed.), vol. 2, section 923; (3d Ed.), vol. 3, section 1414.
On the same subject see Brown v. Union P. R. Co., 81 Kan., 701, 106 Pac., 1001, 29 L. R. A. (N. S.), 808; McGinn v. N. O. Ry. & Light Co., 118 La., 811, 43 South., 450, 13 L. R. A. (N. S.), 601, and note; Southern P. C. v. Hogan, 13 Ariz., 34, 108 Pac., 240, 29 L. R. A. (N. S.), 813; Cleveland, Cincinnati Chicago & St. L. Ry. Co. v. Hadley, 170 Ind., 204, 82 N. E., 1025, 84 N. E., 13, 16 L. R. A. (N. S..), 527, 16 Ann. Cas., 1; Hughes v. Atlantic City & Shore Railroad Co., 85 N. J. Law, 212, 89 Atl., 769, L. R. A., 1916A, 927; Sweeney v. Erving, 228 U. S., 233, 33 Sup. Ct., 416, 57 L. Ed., 815, Ann. Cas., 1914D, 905. In this the last-named case Mr. Justice Pitney discussed the doctrine of Stokes v. Saltonstall, 13 Pet., 181, 10 L. Ed., 115, cited supra, and said:
*470 “Reading of the report shows that the case turns upon the high degree of care owing by carrier to passenger, and that the court did not rule that the circumstances of the occurrence shifted the burden of proof upon the main issue. Such is the effect that has uniformly been given to the decision. ’ ’
After citing authorities to sustain the above quotation he concludes:
“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such 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 forstall 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 plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.”
What we have said would be a good answer to the first assignment on the hypothesis first mentioned, but we think a correct view of all the evidence is that there was no material issue of fact for the jury to determine on the- question of the negligence of the defendant, and therefore if the court erred in charging the doctrine res ipsa loquitur, it was innocuous error, for error
If, upon all the evidence, no reasonable difference of opinion can exist among men as to the negligent character of the act of defendant’s employees in carrying the street car on the crossing under the circumstances and at the time then that act was negligent in law, and there was no issue for the jury on the question of negligence. Traction Co., v. Carroll, 113 Tenn. (5 Cates), 514, 82 S. W., 313.
Passing now to a consideration of the evidence in order to determine if the act was negligent in law— when the street car, on which plaintiff was a passenger and had paid his fare, was on its way from Memphis to Raleigh and had reached the intersection where its track running east and west crossed double tracks of the railroad company running north and south at Binghampton, a freight train composed of fifty-two cars running south at a high rate of speed on the west track was about to pass over the crossing. When the street car reached this crossing it was about six thirty p. m. on September 17,1914. The street car train was composed of a motor car and a trailer. On the motor car were a conductor and a ipotorman, and on the trailer there was an additional conductor. The motor car and the trailer were each equipped with gates or doors worked by levers managed by the employees in charge, and through these doors passengers boarded and were discharged from the cars. The windows in
It is true that the operatives of the street car did not control the operation of the north-bound railway train, but it was their duty to exercise the utmost care, skill, and foresight in the operation of the street car train and theirs was the sole right and duty to so control the operation of that train that it would not attempt to occupy the crossing except when it was safe so to do. The operatives of the street car had the right of selection as-to the time when the street car .would attempt to make the crossing. There was no exigency requiring them to attempt a crossing when it was unsafe. There was no vis major on the street capable of compelling them to attempt an unsafe crossing, or threatening the safety of their passengers in the event of failure to make such, an attempt at the partieu
It is no exculpation to say that the smoke and dust which followed in the wake of the south-bound train so obscured the north-bound freight that it could not be seen by the conductor. Such a condition of the atmosphere called for additional caution on his part; he should have withheld his signal to the motorman until he had sufficient evidence that the crossing was safe.. In a case where a plaintiff was seeking damages for injuries received while he was driving on the track of a street railway in Memphis, at night, when darkness and dust made it impossible for him to see or be seen at a greater distance than thirty or forty feet, and his injuries resulted from a collision with a street ear moving toward him at thirty miles an hour, it was held that, he could not recover, because of his lack of ordinary care. Railroad v. Roe, 118 Tenn. (10 Cates), 601, 102 S. W., 343.
Nor is it a sufficient answer to say that the conductor could not hear the noise of the approach of the northbound freight because of its commingling with noise from the south-bound freight. He knew the south-bound Height had just passed; he saw and heard it pass; he was bound to take notice of the danger that it might as
The considerations mentioned irretrievably stamp negligence upon the conduct of this servant of the company. The facts to which we have referred are not in dispute upon them alone. A directed verdict for liability in some amount was maintainable. When all the evidence was in there was indeed no question for the jury on the question of negligence. The only matter which should, have been submitted to the jury was the amount of damages to which plaintiff was entitled.
Whatever may be said of the charge, it was more favorable to defendant than it might have been if the trial court mero motu or on motion of plaintiff had directed a verdict in his favor, and submitted the cause to the jury only on the amount of the damages.
Whether the railroad company was or was not in any manner negligent in the operation of the colliding north-bound train we do not consider material. Howevér great its negligence may have been, no harm would
The first assignment of error is overruled.
The second, third, fourth and fifth assignments of error each rest on the predicate that the court erred in declining a special instruction. The questions made by them are that the conductor of the street railway train had the right to assume that those in charge of any approaching railway train would exercise reasonable care, etc., and that the railroad locomotive would he equipped with a proper headlight that could be seen, etc., and would sound a warning, and that under chapter 46, Acts 1871, it was the duty of those in charge of the north-bound train to stop the same before crossing the track of the Memphis Street Railway Company.
The only remaining assignment is that the-amount allowed by the verdict as damages was so grossly excessive as to evince passion, prejudice, or caprice on the part of the jury. We have examined the evidence on this point, and in our opinion the assignment is without merit.
We find no error in the judgment of the court of civil appeals.
Judgment affirmed at petitioner’s cost.