34 App. D.C. 358 | D.C. Cir. | 1910
delivered the opinion of the Court:
In the refusal of the court below to grant plaintiff’s instruction number one, which is the first assignment of error, we think no-
We also think that, in refusing to grant the second and third instructions requested by plaintiff, the court committed no error. These instructions were objectionable in that they related to a single portion of the evidence, and required the jury to find negligence on the part of the defendant from that fact. As in the first assignment of error, the court gave an instruction which we think was sufficient to embrace everything requested in the second and third instructions asked by plaintiff, and which more properly submitted to the consideration of the jury the particular point involved. The instruction given by the court was as follows: “If you shall find from the preponderance of the evidence that the plaintiff was injured on the occasion in question by a lurch or jerk of the street car on which he was a pas
We now come to the consideration of a more difficult branch of the case—the exception of the plaintiff to the granting of-certain instructions by the court, which embraces the fourth, fifth, and sixth assignments of error. These three assignments can be considered together.
By these instructions the court cast upon the plaintiff the burden of proving by the preponderance of the evidence the. negligence of the defendant. It is sought by counsel for plain-:
We think the difficulty arises from treating the terms “burden of proof” and “weight of evidence” as synonymous. The burden of proof always remains with the party alleging the fact or state of facts m support of his case. The weight of evidence shifts from side to side during the trial accordingly as the proofs are in support or denial of the main fact or facts sought to be established. The distinction is well defined in Cen
This, we think, is not only the established law of this jurisdiction, but of the courts generally. In Metropolitan R. Co. v. Snashall, 3 App. D. C. 420, a passenger was injured while riding on one of defendant’s horse cars. The court said: “Under the circumstances of this accident, there having been no derailment, no collision, no failure of the means or appliances for transportation, no presumption of negligence on the part of the carrier could be indulged from the mere happening of the accident itself. Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160. Nor is it to be presumed from the mere
It will be observed that the court was careful in the instructions in question to apply them to the facts of the present case, and not as an announcement of any general rule of law. As we had occasion to intimate in a recent case (Jaquette v. Capital Traction Co. present term, ante, 41) a different rule as to the shifting of proof applies in a case where, as in the case at bar, the plaintiff alleges in his declaration the specific facts upon which he relies to establish the negligence of the defendant. Where these facts are within the knowledge of the plaintiff, and they affirmatively appear in his declaration, he assumes the burden of establishing negligence as a basis for recovery. In such a case the plaintiff cannot establish a prima facie case calling for rebuttal or explanation by the defendant, by merely proving that he was a passenger and the occurrence of the accident by which he was injured. If this right at all existed in the present case, it has been waived.. The plaintiff has estopped himself by the terms of his declaration, to which defendant has taken issue, and which it was called upon to meet at the trial. Even the application of the doctrine of res ipsa loquitur does not relieve the plaintiff of the burden imposed upon him of establishing his case by the preponderance of the evidence. A clear statement of when this maxim of law applies is found in Salmond on Torts, p. 29, where the author says: “The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff ; because it may be that the true cause of the accident lies
With this clear statement before us, it follows that the happening of an accident to a passenger in such a manner that he cannot prove how it occurred—the true cause lying solely within the knowledge of the defendant, or the accident being such a one as would not' happen in the ordinary course of things under proper' management—-affords reasonable evidence that the áccident arose from want of care. If the defendant offers no explanation of the accident, then the want of care will be presumed, and, in the absence of satisfactory explanation, recovery may be had.
Inasmuch as the instructions must have a direct relation to
If, in a case like the present, where the plaintiff has alleged facts relied upon as constituting negligence on the part of the defendant, and has affirmatively adduced proof in support thereof, and the defendant has given testimony tending to disprove such evidence, the defendant is to have imposed upon him the presumption of law that the mere happening of the accident creates an additional burden, he is met with something that is not proof or evidence of anything weighing against the testimony of competent witnesses. This presumption only arises in the absence of evidence of the circumstances out of which the negligence of defendant may be ascertained. As said by Mr. Justice Brewer in Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275: “In the case of a passenger the fact of an accident carries with it a presump
The seventh, eighth, and ninth assignments of error may be treated together. Defendant introduced as a witness an officer of the company, who testified that the following notice was printed on the car in question at the time of the accident, “Dangerous to Ride on the Platform.” The witness also testified to the particular part of the car on which the sign appeared. On cross-examination it was shown that the notice was placed there by authority of the defendant company. Counsel for plaintiff then sought to prove by way. of .cross-examination the attitude of the company, aside from the warning, with respect to passengers riding on the platform, and also to show whether the company had rules forbidding passengers to ride on the platforms, or had given instructions to its conductors as to the control of passengers riding thereon. We think this was not proper cross-examination. It was entirely immaterial what rules the company may have had respecting passengers riding on the platform, or what the duty of conductors may have been in relation thereto. It was not even intimated that, if such rules did exist, plaintiff had any knowledge of that fact. The mere existence or nonexistence of such rules could not affect the right of recovery by plaintiff. It was therefore immaterial whether the defendant had any rule, independent of the warning, as to passengers riding on the platform. Besides, the court instructed the jury fully as to the degree of diligence which the defendant was required to exercise toward the plaintiff. The
The tenth assignment of error was abandoned on the argument of the case. The eleventh assignment relates to the refusal of the court to allow counsel for plaintiff to read to the jury extracts from a published opinion of this court in another case. The duty of the jury relates solely to passing upon the evidence as adduced on the trial, under proper instructions from the court as to the law applicable thereto. It is the peculiar function of the court to administer the law, a matter with which the jury has nothing whatever to do. Hence it would have been highly improper to have permitted counsel to have read an extract of a decision of this or any other court to the jury. Aftér a careful consideration of the record in this case and a review of the errors assigned, we fail to find any reversible error. The judgment is affirmed, with costs, and it is so ordered. Affirmed.