185 N.C. 289 | N.C. | 1923
In considering this appeal we observe an utter want of any direct proof that the window, or either of its bolts or safety catches, was defective or that it was raised by an employee of the defendant. Neither the height to which the sash was raised nor the condition of the catches nor whether the raised sash was secured by the catches is ascertained. So there is no definite evidence as to what caused the window to fall and no evidence of negligence except the bare fact that it fell. The plaintiff therefore seeks to maintain her action by applying to the evidence the rule res ipsa loquitur. The rule is clearly stated in Scott v. The London Docks Co., 159 Eng. Rep., 665: “There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, 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 want of care.” But it is essential to show that the appliance, machinery, device, or other agency causing the injury is under the management of the defendant or his servants; and in applying the rule in actions against common carriers the courts are generally .agreed that when a passenger is injured by machinery and appliances wholly under the carrier’s control, this fact is sufficient prima facie to show negligence. 20 R. C. L., 188, sec. 157, and cases cited. Wigmore says that one of the considerations limiting the rule is that both inspection and user must have been, at the time of the injury, under the control of the party charged. Wigmore on Evidence, sec. 2509. In this l.espect the decisions of this Court cited in the plaintiff’s brief may be differentiated from the case at bar. In all of them “the thing” was under the management or control of the defendant and not of the plain tiff; as, for example, a mail bag defectively hung or secured (McCord v. R. R., 134 N. C., 53); the fall of an elevator (Womble v. Grocery Co., 135 N. C., 474; Stewart v. Carpet Co., 138 N. C., 61); defective machinery in a cotton mill (Ross v. Cotton Mills, 140 N. C., 115); negligence in unloading a car of coal (Fitzgerald v. R. R., 141 N. C., 531); the defective roof of a coach (Ridge v. R. R., 167 N. C., 510); a loose bolt in the aisle of a coach (Lindsey v. R. R., 173 N. C., 391); fire escaping from a smokestack (Matthis v. Johnson, 180 N. C., 130); the explosion of gasoline stored in the defendant’s warehouse (Newton v. Texas Co., 180 N. C., 561); derailment of a train (White v. Hines, 182 N. C., 275); and the explosion of a boiler (Harris v. Mangum, 183 N. C., 235). But in the instant case the user at the time of the injury
The principle which we conceive to be apposite is stated by Chief Justice Parsons in Boucher v. R. R., 79 At. (N. H.), 993, the facts in which were similar to those in this case. He said: “the plaintiff, having traveled safely in one of the defendants’ trains from Nashua to Concord, while the train was at the latter station, .changed her seat to one then vacated by another passenger beside an open window. Shortly after the train started from Concord the sash of the window fell upon her arm, causing the injury complained of. Aside from the fact that the sash fell after the train bad been in motion about five minutes, there was no evidence of any defect in the window or its appliances . . . It is not common knowledge that windows in ordinary passenger coaches are opened only by railroad employees, and it could not therefore be found without evidence that the defendants left the window in an unsafe condition. It is not claimed that there was anything about the appearance of the open window which should have given notice to the trainmen of its insecurity. the defendants cannot be charged with fault for the improper manner in which the window was left, because the evidence leaves it uncertain whether the act to which carelessness may be imputed was theirs or that of a stranger. They cannot be charged upon the ground of a defective condition, because there is no evidence of any defect except the fall of the sash. Neither can it be assumed, in the absence of some evidence of defective condition, that such a condition caused whoever opened it to leave it so that it might fall. It is therefore unnecessary to attempt to determine the proximate cause- of an injury under such circumstances . . . the carrier does not insure the passenger against injury from any cause during transportation, and there is no implied contract of safe carriage. the plaintiff’s right of action is based on negligence, and negligence must be shown to authorize a recovery. If the accident may have been due to other causes than the carrier’s negligence, the fact of the accident does not authorize the
The judgment and verdict will be set aside, and judgment will be entered on the defendant’s motion — dismissing the action as in case of nonsuit.
Reversed.