180 N.C. 330 | N.C. | 1920
Action for injuries to land caused by the negligent burning of tbe timber thereon. The fire, plaintiff alleged, originated from sparks emitted from one of the defendant’s engines, which had a defective smokestack and spark arrester. It is the same fire and same engine that caused the injuries for which the plaintiff, in Williams v. Camp Mfg. Co., 177 N. C., 512, recovered a judgment for damages, which was affirmed by this Court, as will appear from the reported case, supra, and after a careful study and comparison of the two cases we have been unable to.discover any substantial difference in respect of the facts between them. Mr. Stevens argued the case for the defendant very ably, and contended that there was some difference in the facts of the two cases, but our investigation has irresistibly led us to the opposite conclusion, and we find no such difference in the essential facts. The
There was evidence that defendant’s engine set out the sparks which started the conflagration, and thereby damaged plaintiff’s timber and lands. It was not very strong or conclusive in its nature or its force, but rather inconclusive, and yet we cannot say there was no evidence of the fact in issue. The remedy for the false verdict, if it was false, was an application to the judge for relief by setting aside the verdict, as being against the clear preponderance of the testimony, and we presume this course was taken, and failed to have the desired effect. While the evidence presented a strong ease for the exercise of the power which resides in the judge, we cannot review the ruling by which he refused to disturb the verdict on this ground. It must therefore stand, unless there be reversible error in law, and we think there was such error.
Instead of charging the jury that when plaintiff made out -a prima facie case it was incumbent upon defendant to go forward with its evidence or take the risk of an adverse verdict, the court placed the burden upon the defendant to satisfy the jury by a preponderance of the evidence that it was not negligent. This was stating the principle of law much too strongly, and no doubt may have caused the jury to miscarry in their verdict upon the facts. ¥e have repeatedly stated the true rule as formulated by this and other Courts. The present Chief Justice expressed it very clearly and tersely in Shepard v. Tel. Co., 143 N. C., 244, where he held that though plaintiff has shown a prima facie case of negligence, it may be rebutted, but it is not necessary that the rebutting evidence of the defendant should preponderate, as the burden remains with the plaintiff throughout the case to establish negligence. He makes an apt quotation from 1 Elliott on Ev., sec. 13Y, which we approved, as follows: “The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is in turn compelled to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor’s ease by a preponderance of the evidence, for the actor must fail if upon the whole evidence he does not have a preponder-
This would seem to be entirely sufficient to show the error of the learned judge in his charge, but the question has formerly been considered by this Court in Stewart v. Carpet Co., 138 N. C., 60, which has been approved and quoted from in Sweeny v. Erving, 228 U. S., 233, to this effect: There was much discussion by counsel of the doctrine of res ipsa loquitur and its relevancy to the facts of this case. “The thing speaks for itself” is a principle applied by the law where, under the circumstances shown, the accident presumably would not have occurred, in the use of a machine, if due care had been exercised, or, in the case of an elevator, when in its normal operation after due inspection. The doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury, which requires the defendant “to go forward with his proof.”
“The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator, attributable to the defendant’s negligence. The law attaches no special weight, as proof, to the fact of an accident, but
It was said in Sweeney v. Erving, 228 U. S., 233-240: “In our opinion, res ipsa loquitur means that tbe facts of tbe oecurrent warrant tbe 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 tbe jury, not that they forestall tbe verdict. Bes ipsa loquitur, where it applies, does not convert tbe defendant’s general issue into an affirmative defense. When all tbe evidence is in, tbe question for tbe jury is whether tbe preponderance is with tbe plaintiff.”
Kay v. Metropolitan St. Ry. Co., 163 N. Y., 447, was an action by passenger against carrier, and tbe New York Court of Appeals said (p. 453) : “In tbe case at bar tbe plaintiff made out her cause of action prima facie by tbe aid of a legal presumption (referring to res ipsa loquitur), but when tbe proof was all in tbe burden of proof bad not shifted, but was still upon tbe plaintiff. ... If tbe defendant’s proof operated to rebut tbe presumption upon which tbe plaintiff relied, or if it left tbe essential fact of negligence in doubt and uncertainty, tbe party who made that allegation should suffer, and not her adversary.
Such, we think, is tbe view generally taken of tbe matter in all well considered judicial opinions.
It will be seen, therefore, tbat tbe rule as to tbe burden of proof is well settled with us against tbe charge by tbe judge to tbe jury in this case, and for this error there must be another trial.
It is true tbat expressions are to be found in some of our cases, filtered there from two or three cases based on tbe English rulé, which justified bis Honor’s charge, but since tbey were decided we have adhered to tbe true and correct rule, which is stated in Stewart v. Carpet Co., supra; Womble v. Grocery Co., supra; Cox v. R. R., supra; Shepard v. Tel. Co., supra, and many other cases, and which we have applied in this case, tbe substance of which is tbat tbe burden to prove bis case is always on tbe plaintiff, wbetber tbe defendant introduces evidence or not. "Where we have said “it is tbe duty of tbe defendant to go forward with bis proof,” it was only meant in tbe sense tbat if be expects to win it is bis duty to do so or take tbe risk of an adverse verdict, and not tbat any burden of proof rested upon bim. He pleads no affirmative defense but tbe general issue, and this puts tbe burden throughout tbe case on tbe plaintiff, who must recover, if at all, by establishing bis case by tbe greater weight of evidence. Tbe Supreme. Court of tbe United States has so stated tbe rule, and it referred with approval to our cases above cited. We say this much again, in tbe hope tbat tbe rule, as. we have stated it, may hereafter be considered as tbe correct one.
Tbe other exceptions, while earnestly presented before us, need not be considered, as tbey are without any merit.
New trial.