122 Mo. App. 405 | Mo. Ct. App. | 1907
Plaintiff says she AAras injured on the evening of June 22, 1904, in a panic among the passengers on one of the defendant’s trolley cars. She was received as a passenger at Lindell boulevard station. The car Avas croAvded Avith passengers, some of Avhom could not find seats and Avere standing in the aisles and on the front and rear platforms. Plaintiff says that after the car had proceeded a short distance from the station her attention Avas attracted by flames and smoke underneath its floor and about its sides. As the car could not be propelled in the usual manner, the motorman went from the front to the rear platform and started the car forward. It did not run freely and Avas run backwards and for Avar ds a short distance for a Avhile, and finally moved a block further on its way tOAvard town. The
“The court instructs the jury that if you believe and find from the evidence that on or about the 22d day of June, 1904, the plaintiff was a passenger on one of defendant’s cars, and while said plaintiff was a passenger thereon, an explosion occurred in and from the machinery of said car, by reason of which a panic was caused among the passengers in said car, and the plaintiff, with*410 out fault or negligence on her part, and while exercising ordinary care under the circumstances, received the injuries of which she complains, then it rests upon the defendant to prove that said car and the machinery by which it was operated was reasonably safe and sound, so far as human skill, diligence and foresight could provide; and that said explosion was caused by inevitable accident, or defects in said car and machinery, that could not. have been seen, detected or known to the defendant, its agents or servants, by the exercise of the highest human skill, diligence and foresight. By the highest human skill, diligence and foresight is meant such skill, diligence and foresight as is exercised by a very cautious person under like circumstances.”
For the defendant the court instructed that if the jury found the explosion wa,s not due .to negligence on the part of defendant or its servants, but arose from some cause which the skill and foresight of very careful persons engaged in the same or similar occupation, would not have discovered or foreseen, defendant was not guilty of negligence; but that the burden of proof was on defendant to show the explosion, accompanied with smoke and flames, was not due to its negligence. The court further instructed the jury that if they found the explosion, smoke and flames were not dangerous, and that the danger Avas only apparent, no verdict could be found for plaintiff, unless the jury believed from the evidence that the apparent danger was so imminent and threatening as to cause a person of ordinary prudence, under the circumstances, to apprehend danger and to change his or her position on the car from such apprehension ; that if the jury found the explosion was not so great as to cause a person of average intelligence, as shown by the evidence, to try to escape from the danger or to change his position in consequence thereof, the verdict should be for the defendant. The verdict returned
1. The petition is said to state no act of negligence which was covered by the instruction given for plaintiff or sufficient to uphold the verdict; but plaintiff’s counsel maintain the allegations are good after verdict and that they tendered issues regarding acts of negligence fairly within the scope of plaintiff’s instructions. The main instruction given at plaintiff’s request stated only by implication the ground on which she could have a verdict. Its special purpose was to advise the jury as to when the burden of proof shifted to defendant. It proceeded on the theory of law that if an explosion occurred in the machinery of the car and created a panic resulting in injury to plaintiff while she was using care for her safety, the fact of the explosion, under those circumstances, was evidence of negligence, and threw on defendant the duty of exonerating itself. The effect of the charge was to hold defendant answerable to plaintiff unless the explosion, whatever its intensity, was not caused by defendant’s failure to do its duty toward providing safe mechanism. We pass over the question of the sufficiency of the petition after verdict, or whether or not it contained averments of negligence on which to base the instruction for plaintiff, because, conceding those points in her favor, we hold the doctrine of the instruction is unsound. It may look like defendant acquiesced in the theory that plaintiff made a prima facie case by proving there was an explosion followed by a panic as a consequence; for one of the instructions given on defendant’s request contains the statement that the burden was on it to prove any explosion which may have occurred was not due to its negligence. But other instructions requested by defendant and refused by the court, indicate that defendant opposed this ruling in the first instance; and we think the fair view is that, in requesting instructions which recognized the same theory, de
“It is not true that jerks do not usually occur in the*415 running of cable cars, but on the contrary it is a fact that they are unavoidable. It is only in cases where the injury Avould not occur in the ordinary conduct of such affairs, that negligence is imputed to a defendant. Where, as here, it affirmatively appears, and is proved by common experience as well as by the laws of physics, that the particular thing complained of is unavoidable, there can be no negligence.”
A comparison of the Bartley and Dougherty cases, the injury in both having been caused by a sudden movement of a street car, will bring into clear view the principle on which the maxim in question rests and the error of its application in the instruction we are considering. In the Dougherty case the inference of negligence from the sudden jerk of the car was alloAved because the testimony showed the jerk Avas unusually violent; whereas in the Bartley case the inference was rejected because, for aught that appeared, the jerk complained of was ordinary and unavoidable. In the present case, though there Avas evidence that the alleged explosion which is said to have led to plaintiff’s injury, was of extraordinary intensity, there Avas much evidence to the contrary, and the instruction treated any explosion resulting in a panic as sufficient to make a case against the defendant. If it is argued that the consternation of the passengers shows the explosion was unusual, we answer that it cannot be inferred that the explosion was of extraordinary violence because the passengers were affrighted, and then inferred from this presumed violence, that the defendant was negligent. When an essential fact is not directly proved but must be inferred from other facts, the laAV requires the facts from which the inference is to be drawn to be proved and does not allow them to be presumed. [Douglass v. Mitchell’s Excrs., 11 Casey 443; Bigelow v. Railroad, 48 Mo. App. 368, 372; State v. Lackland, 136 Mo. 26, 32; Starkie, Evidence (10 Am. Ed.), 80.] Such presumptions of fact (properly called
2. The instructions given for defendant required the jury to find the explosion and flames were of so dangerous and threatening a character as to move a person of ordinary prudence, under the circumstances, to apprehend injury and alarm him into changing his position on the car. It is contended that these instructions cured the fault in the one given for plaintiff. But how could this be so? The error of plaintiff’s instruction consisted in casting on defendant the burden of proof before plaintiff had made out a prima facie case. That is to say, defendant was required to exonerate itself before plaintiff had adduced evidence tending to show it was culpable. Defendant’s instructions simply stated to the jury that if certain facts were found defendant was not liable. Plaintiff’s instruction dealt with the burden of proof and advised the jury erroneously concerning that matter; not stating explicitly what facts were essential to plaintiff’s recovery.
The judgment is reversed and the cause remanded.