91 P. 481 | Cal. | 1907
On June 25, 1904, a collision occurred on the railroad of defendant corporation, between a passenger-train and a work-train, in which Marie Valente, a passenger on the passenger-train, was killed. This is an action by her surviving husband and children for the damages resulting to them from her death, due, it is claimed, to the negligence of defendant. The trial was by jury, and a verdict for twelve thousand dollars damages was given. The defendant appeals from the judgment entered thereon, and from an order denying its motion for a new trial.
The complaint alleged the happening of the collision and the death of Mrs. Valente resulting therefrom. These allegations were admitted by defendant in its answer. The complaint further alleged: "That said collision was caused by and resulted from the carelessness and negligence of said defendant, and its servants and agents, in the management and operation of its said train, and the death of said Marie Valente was caused by and resulted from the said carelessness and negligence of said defendant, and its servants and agents in the management and operation of its said train." These allegations were denied by the answer, which further alleged as follows: "On the contrary, said defendant alleges: That said collision and the death of said Marie Valente therefrom was and were caused by and resulted from inevitable accident, without any fault or negligence on the part of the said defendant, or of its servants or agents, in any way whatsoever." Upon the trial, evidence was introduced by the defendant to meet the prima facie case of negligence made by the showing of the accident. The collision occurred on a very heavy grade, the work-train, consisting of an engine, an oil-car about half filled with oil, and several flat cars, going down this grade and running into the rear of the passenger-train. There was evidence tending to show that the work-train was properly equipped and in first-class order, and that the train hands carefully managed the same, and that the accident was due to the fact that the oil-car had sprung a leak, allowing oil therefrom to drip upon the rails, with the result that the train could not be stopped. It is not intimated by plaintiff that the evidence would not have supported a conclusion by the jury that the defendant was free from negligence. Under these circumstances the trial court, after instructing the jury *537 that by reason of the admission as to the collision and the death of Mrs. Valente therefrom a presumption arose that the accident resulted from defendant's negligence, and that, in order to rebut such presumption, defendant must show that the collision resulted from some inevitable casualty or unavoidable accident, or from some cause which human care and foresight could not have prevented, instructed the jury as follows: "The burden of showing that the collision occurred by no fault of the defendant and from some inevitable casualty or unavoidable accident or cause beyond the power of human care or foresight to prevent is on the defendant. In order to absolve itself from liability from anyloss, which may appear from the evidence to have been occasionedby such collision, it must establish by a preponderance of theevidence that such collision was caused by or resulted from someinevitable casualty or unavoidable accident or cause beyond humancare or foresight to prevent." The court nowhere instructed or intimated to the jury that, upon the whole case, the burden was upon the plaintiffs to establish the truth of their allegation of negligence by a preponderance of evidence.
Complaint is made that these instructions charged defendant with a degree of care entirely unwarranted. This matter was very fully considered by this court in the recent case of Kline v.Santa Barbara etc. Ry. Co.,
We can, however, find no valid answer to another objection made by defendant to the portion of these instructions that we have italicized. By it the jury was clearly instructed that the defendant must show by a preponderance of evidence that it wasnot negligent, or, in other words, that it used the utmost care and diligence, in order to avoid a recovery of the damages resulting to plaintiffs from the death of Mrs. Valente. This also was the plain effect of all the instructions taken together. Such is not the law.
In any action for damages resulting from negligence it is essential to the statement of a cause of action that negligence on the part of the defendant be alleged, and if the allegation be denied it must be proved by the plaintiff by a preponderance of the evidence. The affirmative of such an issue is primarily upon the plaintiff. This is elementary law, and of course it is not disputed by learned counsel for plaintiffs. Their contention in support of such instruction rests upon the well-settled doctrine, stated in Shearman Redfield on Negligence (sec. 59) as follows: "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." In accord with this doctrine, it is the rule in this state that when such an accident is shown by the plaintiff, or admitted by the pleadings, for there can be no difference in effect between the establishment of the fact by evidence on the trial and the admission of that fact by the *539 pleadings, a prima facie case of negligence on the part of the defendant is made, which is sufficient to call upon the defendant to show the exercise of the requisite care, and thus offset the presumption of negligence arising from the happening of the accident. This presumption, however, is simply evidence in the case, having no greater or different effect than the evidence of witnesses showing negligence would have, and in no degree changes the rule as to the burden of proof, in the strict sense of that phrase, — viz. the burden of producing a preponderance of evidence. That burden does not shift from side to side in the trial of a case, but constantly remains with the party having the affirmative of the issue, who, in an action for damages for negligence, is the plaintiff. Instructions declaring that when such an accident is shown the "burden of showing" want of negligence is on the defendant do not mean, according to the decisions of this state, that the defendant is compelled to show want of negligence by a preponderance of evidence. The term "burden of showing" or "burden of proof" used in that connection, signifies simply the burden of meeting the prima facie case made by the plaintiff. This is the only theory upon which such instructions can be held to be free from error, unless we are to hold that the well-settled rule as to the burden of proof being on the party who has the affirmative of the issue has no application in the one case of an action for damages for negligence, where the damage results from an accident to a thing 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 is eminently proper to hold that such a showing affords presumptive evidence of negligence, but it would be illogical and contrary to our well-established practice to hold that any kind of an evidentiary showing made by the party holding the affirmative of an issue in support of his claim, however strong such showing may be, throws upon the other party the burden of doing anything more than producing evidence enough to offset the effect of the plaintiff's showing. When a defendant has made such a showing as to the exercise of the care required of him by the law as to leave the evidence upon the issue of negligence in such condition that the jury cannot conclude that the negligence has been satisfactorily shown, he *540 has met the requirements of the law, and the verdict must be against the plaintiff. The rule in this regard is no different in the case of a carrier of passengers from the rule applicable to defendants of whom a lesser degree of care is required. The only difference between these classes of defendants is as to the amount of care required, the carrier of passengers being guilty of negligence as to a passenger if he fails to use the "utmost care and diligence."
The rule, as stated by us, is fully recognized and established by our decisions. The case of Scott v. Wood,
The cases cited by learned counsel for plaintiffs contain nothing opposed to the views we have stated, with the single exception of the case of Bush v. Barnett,
We cannot say as a matter of law that this instruction was not prejudicial to defendant. It follows that the judgment and order must be reversed on account thereof.
Several other points are made for a reversal, but they require very little notice for the purposes of a new trial.
The question as to the admission of a table of life expectancy without preliminary proof as to its authenticity and reliability appears to be decided against defendant's contention by the case of Keast v. Santa Ysabel etc. Co.,
We can see no injurious effect in the admission of evidence as to the life expectancy of the beneficiaries as shown by such a table, provided the jury is clearly instructed that it cannot in any event award damages to any one for any period extending beyond the probable term of the life of the deceased. As damages cannot be awarded any particular beneficiary for any period extending beyond such beneficiary's life, it is *543
proper that such beneficiary should be allowed to show that his expectancy of life is as great as that of the deceased, just as the defendant, on the other hand, would be allowed to show that the life expectancy of the beneficiary is less than that of the deceased. (See Redfield v. Oakland etc. Co.,
The instruction that "Railroad companies engaged in the transportation of passengers for reward are bound to use the best precautions, in practical use, to secure the safety of their passengers," is perhaps too broad a statement, as an abstract proposition. The rule as stated in Treadwell v. Whittier,
We find no other matter requiring discussion.
The judgment and order denying a new trial are reversed.
Shaw, J., and Sloss, J., concurred. *544