46 App. D.C. 479 | D.C. Cir. | 1917
delivered the opinion of the Court:
This is a suit brought in the supreme court of the District of Columbia to recover damages for personal injuries received by-appellant, Elizabeth M. Pistorio, while she w,as a passenger on one of defendant railway company’s cars. The accident was the result of a collision between the car and an automobile owned by defendant George Walker. The appeal is from a judgment for defendants based upon the verdict of a jury.
The principal assignments of error relate to certain prayers offered by counsel for plaintiff and refused by the court, and to prayers given at the request of counsel for defendant. Plaintiff requested the following prayer, which was refused, and to which an exception was reserved: “The court instructs the jury that a passenger is entitled to the highest degree of care, diligence, skill, and caution on the part of the carrier or street railway company, and if the jury believes from the evidence that the defendant operated the railroad mentioned in the declaration and accepted the plaintiff as a passenger, then the defendant was hound to exercise for the plaintiff’s safety the highest degree of care, diligence, and skill practicable under all the circumstances, and exercise reasonable foresight, and to use the utmost care and diligence to prevent a collision and for the protection of the plaintiff from injury while she was traveling as a passenger on the defendant’s car; and if yon find that the defendant failed in any of those respects and that such failure was a contributing cause to the accident, then your verdict should he iu favor of the plaintiff.”
It is unnecessary to consider whether it was error to refuse this prayer, since the court charged the jury that the action was brought against the joint defendants “on the theory that the two were both negligent in bringing about this collision, and the plaintiff appears to have been a passenger upon the car, and the relation hetween her and the railway company by reason of her being a passenger is different from her relation to the other defendant Walker, because he had not undertaken to carry her as a passenger, whereas the railway company had. The railway
However, if it is urged that the language of the charge may not have been understoood by the jury as expressing the rule of law, it was the duty of counsel to have interposed an objection and pointed out to the court the inconsistency, if any, between the language of the charge and the prayer. This was not done. The exception to the refusal to grant the prayer, while sufficient to support an assignment for total failure to cover the point in the charge, is inadequate for that purpose when the court gives the substance of the prayer in the charge.
The second assignment is to the refusal of the court to grant a prayer as to the liability of both defendants as the result of concurring negligence. This point was covered fully in the charge, to which no objection was made. It falls, therefore, within the same rule as the first assignment.
Exception is taken to the refusal of the court to grant a prayer imposing upon both defendants the burden of proving by a preponderance of the evidence that they were free from negligence, on the theory that the law raises a presumption of negligence in this case from the mere happening of the accident. The court, over objection, granted prayers offered by counsel for defendant railway company to the effect that in this case no presumption of negligence arose from the mere happening of the accident, and that the burden of proof was upon plaintiff to establish not only that the railway company was negligent, but that its negligence contributed to' the injury of plaintiff.
The instructions,, of,.course,' must-apply to the instant case.
must recover, if at all, upon the negligence pleaded.” Hamilton v. Metropolitan Street R. Co. 114 Mo. App. 504, 89 S. W. 893, quoted with approval in Jacquelle v. Capital Traction Co. 34 App. D. C. 41, 44, 5 L.R.A.(N.S.) 407. The same rule applies where negligence is alleged in general terms, but the plaintiff voluntarily assumes the burden of proving it. “This presumption only arises in the absence of evidence of the circumstances out of which the negligence of defendant may be ascertained.” Sullivan v. Capital Traction Co. 34 App. D. C. 358, 374.
It is undoubtedly the law that, as between passenger and carrier, where the causes which produce the accident are peculiarly within the knowledge of the carrier, the plaintiff may make out a prima facie showing of negligence merely by proving the relation of the parties and the happening of the accident. In such a case an inference of negligence arises which calls for rebuttal by defendant carrier, and which, in the absence of rebuttal or explanation, is sufficient to send the case to the jury
While no instruction as to an inference arising from the happening of the accident was called for or would have been proper in this case, the vice of the prayer requested consists not only in shifting the burden of proof, but in failing to state the effect to be given by the jury to such -an inference when unexplained by the defendant. The law in the exceptional cases where the rule of res ipsa loquitur applies should be stated with great clearness by the court to avoid leaving with the jury the impression that the inference unexplained compels a verdict for the plaintiff. It amounts only to circumstantial evidence of negligence to be considered as a fact in the case. It may or may not, in the opinion of the jury, be regarded as sufficient to justify a verdict for the plaintiff, but it in no case enforces such a verdict.
The rule of this jurisdiction, as.settled from a full review of the authorities in the Sullivan Gase, has been conclusively sustained in the recent case of Sweeney v. Erving, 228 U. S. 233, 240, 57 L. ed. 815, 818, 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D, 905, appealed from tbis court. The court, speaking through Mr. Justice Pitney, said: “In our opinion, res iysa loquitur means that the facts of the occurrence warrant the 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
Exception was also taken to the granting of' a prayer on behalf of defendant railway company to the effect that “the car of the defendant railway company had a preferential right of way which the defendant George Walker was required to respect.” In Capital Traction Co. v. Apple, 34 App. D. C. 559, 572, the court said: “As indicated in the charge, a street car company has a preferential right of way over its own tracks, which all pei’sons, under ordinary conditions, must respect.” This holding was cited with approval in Capital Traction Co. v. Crump, 35 App. D. C. 169.
We have examined the remaining assignments of error, and find nothing of sufficient importance to warrant discussion. The judgment is affirmed with costs. Affirmed.
Mr. Justice IJitz, of the Supreme Court of the District of Columbia, sat with the Court in the hearing and determination of this appeal, in place of Mr. Chief Justice Siiepard.