delivered the opinion of the court.
This is а motion for judgment for money brought by Mrs. Helen Parrish Tritton against H. E. Riggsby and A. P. Franklin.
The terms, pMntiff and defendants, will be used here as they were in the trial court.
In the day time, and on October 4, 1922, Mrs. Tritton was a passenger in a jitney driven by Riggsby. She was going east on Franklin street in the city of
Under instructions, matters in issue were submitted to a jury. It returned a verdict against Riggsby alone. This verdict the court was asked to set aside as contrary to the law and evidence. Riggsby’s motion was overruled and judgment entered, to which exception was duly taken. That exception and those which grew out of the giving of certain instructions are the basis of all errors assigned.
"We will consider thesе assignments in the order followed in the petition for a writ of error.
Complaint is made of instructions I and II. They are:
“I. The court instructs the jury that a common carrier of passengers is one who undertakes for hire to carry all persons indifferently, who may apply for passage, so long as there is room and there is no legal excuse for refusing.
“II. The court instructs the jury that if you believe from the evidence that H. E. Riggsby was engaged in the business of operating a jitney from and to various points in the city, over a well defined route, for hire and reward; that he offered his services in this respect to all alike without discrimination or distinction; then the said H. E. Riggsby was a common carrier.”
Both of these instructions were proper. They state the law correctly and are amply supported by the evidence. Berry on Automobiles, section 1514, and Scott v. Weiss, 92 N. J. L. 404.
Instruction 113^> is: “If. the jury believe from the evidence that the defendant, H. E. Riggsby, was a
We see nothing wrong with this.
The third instruction is: “If the jury believe from thе evidence that H. E. Riggsby was a common carrier of passengers, and that the plaintiff was his passenger and that while such passenger the plaintiff was injured as a result of a collision between the jitney and the automobile of the defendant Franklin, then the court instructs the jury that there is a prima jade presumption that the accident and injury occurred by reason of the negligence .of H. E. Riggsby and the burden of proof is upon Riggsby to rebut such presumption; that is to say, the burden is upon him to show that he was without negligence in the collision.”
Petitioner claims that this instruction is erroneous and goes to the heart of the ease.
It, and the application of those principles upon which it is based, must be considered in some detail.
This brings to our consideration the doctrine of res ipsa loquitur, on which, as Judge Burke has observed, much ink has been shed.
The following are authoritative and satisfactory statements of those general principles out of which this presumption grew:
In Scott v. London St. K. Docks Co., 3 H. & C. 596, Erie, C. J., observed that in order for it to apply “there must be reasonable evidence of negligence, but where
Shearman & Redfield on Negligence, section 59, state that: “When a thing which causes injury is shown to be under the management of the defendant, 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 a want of care. So, also: ‘Where it is shown that the accident is such that its real cause may be the 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 dees not choose to give the explanation, the real cause was negligence on the part of the defendant.’ ”
Wigmore- on Evidence, section 2509, concludes his discussion of this subject with these observations: “What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such, that in thе ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) both inspection and user must have been at the time of the injury in the control of the party charged; (3) the injurious occurrence or
From the decided cases it appears that the weight of authority favors the. application оf this doctrine as contended for by the plaintiff. They are collected in a note to 29 L. R. A. (N. S.), 812. This law took form in the main when traffic conditions were different and before automobiles came into universal use.
The reasoning on some of them is that accidents of this kind do not usually happen when proper care is exercised, see Housel v. Pacific Electric R. Co.,
Neither theory has been unqualifiedly adopted in Virginia. It has always been necessary that we look to the nature and quality of the accident. These cases which sustain thе presumption do so, not because there was an accident, but because of its character.
The accident in itself raises no presumption.
This phase of this question was considered in Roanoke Ry. Co. v. Sterrett,
In Murphy's Hotel v. Cuddy's Adm'r,
See also Eaton v. Wilmington City Railway Co., 1 Boyce (Del.) 435,
In Elliott v. Brooklyn Heights R. Co.,
In Loehner v. North Chicago, etc., Co., et al.,
This statement of the law was quoted with approval in Union Traction Co. of Indiana v. Mann,
In Stangy v. Boston, etc., Railway Co.,
In Long v. Pennsylvania R. Co.,
“This presumption, it will be noticed, arises, not out of the character of the carrier, but out of the nature of the accident. The injurious accident must be connected with the appliances for transportation which are provided by the carrier, are under its exclusive сare and control, and whose condition it is bound to know.”
These authorities give ample support to that statement of the law formulated by judge Harrison in the Roanoke Railway Co. Case, supra. The rule itself is one of evidence and amounts to a prima facie presumption of fact sometime, resorted to by the court in the absence of evidence. It is a rule of necessity, to be invoked only when necessary evidence is absent and not readily■ available. On the other hand, it is not to be invoked when the evidence is in fаct available and, a fortiori, not when it is actually presented. In such circumstances the ease goes to the jury unhampered by any presumption at all.
This proposition is thus stated by Mr. Justice Pitney in Sweeney v. Erving, 228 U. S. 233,
The Supreme Court of North Carolina had occasion to express itself on this subject in Baldwin v. Smitherman,
These authorities support that qualification of the rule suggested by Professor Wigmore as necessary to be -considered whenever the rule itself is invoked. In the .instant case eye witnesses have testified to every phase ■of the accident. There was no evidence accessible to Riggsby and inaccessible to the plaintiff.
There was a conflict of evidence, but no want of •evidence. If a conflict was all that was necessary to put the maxim into effect, there would never be any occasion to look either to the nature or quality of the accident.
Another manner of expressing the same under-dying rule was adopted by this court in Washington Railway Co. v. Bouknight,
“While the burden * * * is always upon the-plaintiff to establish his right to recover by the preponderance of evidence, in cases where the causes of the accident are peculiarly within the knowledge of tho defendant, proof of the happening of the accident (such as a derailment) establishes a prima facie ease which calls for rebuttal and explanation on the part of the defendant. The plaintiff, by proving the accident, has reasonable evidence on which the jurors may, if they think fit, find a verdict for him.”
In the ease in judgment there was no knowledge peculiarly in the breast of the defendant, Riggsby, and there was no evidence not readily accessible to the plaintiff. The necessity for presumptions or for secondary evidence did not arise at all. There was nothing in the nature or quality of the accident to call for them.
In N. & W. Ry. Co. v. Poole's Admr.,
“Where damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other, since the plаintiff is bound to make out his case by the preponderance of the evidence.
“The doctrine of res ipsa loquitur can have no application where the accident is due to a defective appliance under the management of the plaintiff, nor to a case involving divided responsibility, where an unexplained accident may have been attributed to one of*915 •several causes, for some of which defendant is not responsible.” Peters v. Traction Company,108 Va. 333 ,61 S. E. 745 , 22 L. R. A. (N. S.) 1188, and we have already seen that it has no application where the cause of the accident is explained.
■It is true that greater care, so far as the plaintiff was •concerned, was due from Riggsby than from FranHin, and this might in certain circumstances warrant the assumption that .Riggsby and not FranHin was liable for the damage inflicted. Here the plaintiff stated, ■dum fervet opus, that Riggsby was not to blame. It is true that she explained this statement by saying thаt ;she did not know the rules of the road had been changed .and that she thought automobiles going east and west had the right of way over those traveling north and south. This had been the rule. It .was changed by •ordinance set out in the record, which in effect provided that where two automobiles approach, approximately at the same time, the intersection of streets, that ■car on the right has the right of way, so that the rule .affеcting plaintiff’s case was as she believed it to be when she exonerated Riggsby from blame. Moreover, we are not dealing with the degrees of care imposed by law on these two defendants, but with the necessity of resorting to evidential presumptions when the evidence itself is at hand.
There are two eases decided by this court which, upon casual inspection, would seem to be measurably in point.
Carleton v. Boudar,
In Norfolk & W. Ry. Co. v. Rhodes,
“That where the injury is caused by the derailing of the train by collision or other accident to the ear in which the passenger is riding,” the presumption arises.
Here he manifestly had in mind railroad collision on their own tracks. The running of trains is an intricate matter and it is the common experience of man that collisions in their operation arise out of causes peculiarly within the breast of the railroad itself. The passenger is not required to search this out! These defendants were on a public highway and their rights therein were the same.
Washington-Virginia Railway Company v. Bouknight,
It follows that these cases do not control this in judgment and it further follows from what has been said that the doctrine of res ipsa loquitur has no application to the particular facts in this action, and that instruction III was, in this respect, erroneous.
Let us now assume that the instant ease is a proрer one for the application of the doctrine.
Does this instruction embody a correct statement of
In Scarborough v. Urgo,
“Such a presumption is evidence in the ease, but it has no greater or different effect than the testimony of witnesses, and in no degree changes the rule as to the burden of proof, viz: the burden of producing a preponderance of evidence. That burden does not shift' from side to side on the trial of a case, but constantly remains with the party having the affirmative to the issue, who, in this case, is the plaintiff. All that is required of the defendant is to produce evidence sufficient to offset the effect of a plaintiff’s showing. He is not required to offset it by a preponderance of the evidence.
“The doctrine of res ipsa loquitur does not affect the-burden of proof, or transform the general issue into an affirmative defense. * * It shifts the burden of evidence, but not the burden of proof.” Desmarchier v. Frost,91 Vt. 138 ,99 Atl. 782 ; Sweeney v. Erving, 228 U. S. 233,33 S. Ct. 416 ,57 L. Ed. 815 , Ann. Cas. 1914D, 905.
This court has had occasion to consider this question frequently. In Norfolk Southern R. R. Co. v. Tomlinson, supra, it was said:
*918 “In many cases, as in this, the maxim, res ipsa loquitur, applies. The affair speaks for itself. Bnt whether the evidence relied on by the plaintiff to make out a cause of action is the accident itself, from which .arises a presumption of negligence, or is direct evidence of negligence, the burden of proof as to the defendant’s negligence remаins upon the plaintiff through the trial. 1 Shearman & Redfield on Neg., section 57.”
In Tidewater Stevedore Co. v. Lindsay,
If, by burden of proof, we mean the burden of producing evidence, then that burden passes from party to party frequently during the progress of a trial. But if, by burden of proof, we mean .the necessity, which always rests upon a plaintiff to prove his ease, then it never shifts. In thе instant ease, from the nature of the judgment, we think it entirely probable that the jury attached much weight to this instruction and it is easy to see how they may have been misled.
In certain circumstances such an instruction could not mislead and would not be deemed erroneous. It might clearly appear that burden of proof and burden •of evidence were synonyms and were used as such, but it does not so appear here of neсessity and since the .jury may have been misled we are unable to say that they were not.
Complaint is made of instruction IV in that it told the jury that if they found for the plaintiff they should take into consideration the necessary expenses for medicine and medical attention.
There was no evidence on which to base this instruction. This lady was attended by a physician, but the jury is left to guess as to his charges.
Instruction A, tendered by Riggsby and refused, contained the propositions embodied in III.
As to that assignment of error, based upon the refusal of the court to set aside the verdict as contrary to the law and evidence, we have already seen that instruction III was erroneous and it follows that this motion should have been sustained.
This action is reversed and remanded for new trial to be had in accordance with the views here expressed.
Reversed and remanded.