279 F. 180 | D.C. Cir. | 1922
This is a tort action. The appellant, as plaintiff below, charged that, while she was a passenger on one of the defendant’s street cars, she was injured through the negligence of the company’s servants. She alleged that, as the car on which she was riding approached the intersection of V and North Capitol streets, Washington, she, desiring to alight at V street, which was at that time a stopping place, rang the signal bell. The car slowed down, and
But the Supreme Court of the United States has taken a different view of the law. Mr. Justice Pitney, speaking for that court, in Sweeney v. Erving, 228 U. S. 233, 240, 33 Sup. Ct. 416, 418 (57 L. Ed. 815, Ann. Cas. 1914D, 905), said:
“In our opinion, res ipsa 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 it; that they make a case to be decided by the jury, not that they forestall 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.’’
This is binding on us. Some of the many decisions following it are Paine v. Cumberland Telephone & Telegraph Co., 249 Fed. 477, 161 C. C. A. 435; The Great Northern, 251 Fed. 826, 829, 163 C. C. A. 660; Pennsylvania Co. v. Clark (C. C. A.) 266 Fed. 182, 188. It does not relieve the plaintiff of the burden of proof, but does put the burden of evidence — that is, of explanation — on the defendant. Kraljer v. Snare & Triest Co., 221 Fed. 255, 137 C. C. A. 108.
We may admit that the plaintiff by her testimony established that her injury gave ground for the reasonable inference that, if due care had been employed by the company’s employes in charge of the car, the injury would not have happened. But it is one thing to say that it gave ground for a reasonable inference, and quite another to say that it compelled such an inference. Since it did not compel it, the question of negligence was for the jury. Under the authority of the Sweeney Case, her testimony entitled her to an instruction to the effect that the jury might infer negligence from the fact that she was injured by the jerk complained of. But she did not request such an instruction. To have done so would have been inconsistent with the theory on which she tried her case.
The second and third requests of the defendant, granted by the court, are also assigned as error. In the former it is said that the burden of proof was on the plaintiff to establish by a preponderance of the evidence that the company was negligent as charged -in the declaration, and that the negligence was the proximate cause of the injury. No objection is made on the ground that it does not state the law correctly.
A careful examination of the record fails to disclose that error was committed by the learned trial justice, and therefore the judgment must he, and it is, affirmed, with costs.
Affirmed.