Verde Tunnel & Smelter Railway Co. v. Stevenson

196 P. 164 | Ariz. | 1921

BAKER, J.

(After Stating the Facts as Above.) — Upon the trial of this case in the court below the jury found both defendants, Kansas City Structural Steel Company and Verde Tunnel & Smelter Railway Company, guilty, and assessed the damages at $20,000 in tort. The defendant Kansas City Structural Steel Company contends that the verdict against that company is not supported by any evidence; that there was no cause of action proven as against that company. On the other, hand, it is contended by the plaintiff that the defendant Kansas City Structural Steel Company is jointly liable with the defendant Verde Tunnel & Smelter Railway Company, upon the theory that the defendants were joint tort-feasors.

In order that tort-feasors may be liable jointly, it has been said that—

“There must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting, together or in concert if their concurring negligence occasions the injury.” Strauhal v. Asiatic Steamship Co., 48 Or. 100, 85 Pac. 230.

In the instant case it is difficult to discover anything in any way, omission, or commission, constituting negligence on the part of the defendant Kansas City Structural Steel Company. Unquestionably the proximate cause of the plaintiff’s injuries was the movement of the locomotive derrick. The derrick was securely coupled with the train of cars, and therefore it is evident that the train of cars moved. The undisputed evidence is that the train of cars was under the exclusive and sole control of- the defendant Verde Tunnel & Smelter Railway Company. There is an entire absence of any evidence tending to show that the defendant Kansas City Structural Steel Company was in any way or manner connected with the movement of the train. We do not see how it can be said that there was “some sort of community in the wrongdoing” between the defendants, whereby the plaintiff was injured.

But it is contended by the plaintiff that it was negligence on the part of the defendant Kansas City Structural Steel Company to order the plaintiff to go under the locomotive derrick and change the gears, that being an unsafe place in which to work, and that this negligence, on the part of the defendant Kansas City Structural Steel Company, concurred with the negligence of the defendant Verde Tunnel & Smelter Railway Company in moving or permitting the train to he moved, and that the combined negligence resulted in the plaintiff’s injuries. We do not think that the evidence shows that the defendant Kansas City Structural Steel Company was guilty of any negligence in failing to provide a safe place in which the plaintiff was required to work. 'The company omitted no duty in that regard. When the plaintiff was required to go under the derrick and disconnect the gears the place was safe. It afterwards became unsafe, through no fault of the Kansas City Structural Steel Company, and by reason of an accident for which that company was in no way responsible and which it could not reasonably foresee would likely take place or occur. But aside from that question, the failure to provide a safe place in which plaintiff was required to work is not the negligence charged in the complaint. It will be noticed that the complaint charges that—

“The defendants . . . suddenly, negligently, and without warning moved, or permitted to move, said locomotive or train of cars to which said derrick or locomotive crane then and there had become attached.”

The law is well settled that in actions of this kind the plaintiff must recover, if at all, upon the grounds of negligence alleged in Ms petition. 20 R. C. L., Neg., § 146; Greco v. Western States Portland Cement Co., 84 Kan. 110, Ann. Cas. 1912A, 638, and numerous cases cited in the note, 113 Pac. 410.

Of course, whether or not the defendants cooperated in the doing of an illegal act and were together jointly liable for negligence was a matter for the jury, and the jury was at liberty to find in favor of one and against the other, or for or against both. In this case the verdict was against both, but as the evidence, in our opinion, did not tend in any way to show any concert of action in the wrongdoing, or negligence on the part of the defendant Kansas City Structural Steel Company, the verdict as to that company is without any support in the evidence, and that company must be acquitted of all liability.

Having reached the conclusion that the defendant Kansas City Structural Steel Company is not liable, the question arises whether the judgment can be sustained as to the defendant Verde Tunnel & Smelter Railway Company.

The law undoubtedly is that the mere fact—

“that an injury has been sustained will not give rise to a presumption that the injury is due to the negligence of one who is made defendant to an action based thereon. If the evidence does not show any negligence on the part of the defendant, there can be no recovery, no matter how free from negligence the facts show the plaintiff to be. The evidence must point to the fact that the defendant was guilty of negligence.” 20 R. C. L. (Neg.), § 155. Patton v. Texas etc. R. Co., 179 U. S. 658, 45 L. Ed. 361, 21 Sup. Ct. Rep. 275 (see, also, Rose’s U. S. Notes).

But as we said in Arizona Binghampton Copper Co. v. Dickson, ante, p. 163, 195 Pac. 538:

“The law is not so exacting as to require every fact and circumstance going to make up a case of negligence, or to identify the proximate cause, to be proved by eyewitnesses or positive, direct testimony.”

In St. Louis & S. F. R. Co. v. Rushing, 31 Okl. 231, 120 Pac. 973, it is said:

“A plaintiff in a civil cause is not required to prove his case beyond a doubt. All that the plaintiff upon this branch of his case is required to do is to make it appear to be more probable that the injury came in whole or in part from the defendant’s negligence than from any other cause. ’ ’

In Shearman & Redfield on Negligence, section 59, it is said:

“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.”

Applying these principles, we think the plaintiff by his proofs made out a prima facie case of negligence as against the defendant Verde Tunnel & Smelter Railway Company. The plaintiff was lawfully under the derrick, and it was the duty of the defendant to use reasonable care to avoid injuring him. The train was in the exclusive charge and control of the crew of the defendant. Immediately on the escape of the air out of the end of the hose on the two flat cars in front of the derrick, the derrick moved forward some seventeen feet, and the plaintiff’s hand was caught'in the gears and crushed and mangled. The hand brakes on the two flat cars in front of the locomotive derrick were set at the time of the accident, and the evidence shows that these hand brakes were of sufficient strength to hold the flat cars and locomotive derrick under ordinary circumstances, in the absence of the application of force from some outside source. As the derrick was coupled to the train, we think it a reasonable inference, and the jury must have so found, that the derrick could not have moved forward a distance of seventeen feet independent of the train. The train at the time of the accident was standing on a grade. All of these conditions were shown to exist, and they were such as to justify the inference by the jury that the accident was due to the defendant’s negligence, in the absence of any explanation by the defendant or showing that it was not negligent. Such a thing as the movement of a train, under the proven facts, does not happen in the ordinary course of events, unless there is some negligence in its management, or defect in its equipment. The plaintiff was not under the necessity of showing the particular negligence that caused the movement of the train in order to carry the ease to the jury. Colorado Springs & Interurban Ry. Co. v. Reese (Colo.), 169 Pac. 572. As said in Cook v. Newhall, 213 Mass. 392, 395, 101 N. E. 72, 73:

“The whole body of the evidence may be such that no particular negligence can be found, and yet the accident may indicate some negligence, the details of which cannot be ascertained.’-’

See Cassady v. Old Colony Street Ry., 184 Mass. 156, 63 L. R. A. 285; 68 N. E. 10; James v. Boston Elev. Ry., 204 Mass. 158, 90 N. E. 513.

In Rosenfield et al. v. Arrol, 44 Minn. 395, 20 Am. St. Rep. 584, 46 N. W. 768, it is said:

“Negligence, which is the want or absence of ordinary care, is the gist of the action, and the burden was upon the plaintiffs to prove facts from which it could fairly be inferred that the defendant’s negligence was the proximate cause of the injury. The evidence need not be direct and positive. The fact of negligence in any given case is susceptible of proof by evidence of circumstances bearing more or less directly upon the fact. The plaintiffs were not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of resulting injury to themselves. Having done this, they were entitled to recoyer, unless the defendant produced evidence sufficient to rebut this presumption. 1 Shearman & Redfield on Negligence, §§ 57, 58, and cases cited.”

The plaintiff having made out a prima facie case of negligence, it became incumbent upon defendant to offer evidence to rebut it, and to exculpate itself from the charge of negligence. This the defendant failed to do, and we cannot interfere with the verdict of the jury who must necessarily have found that the plaintiff’s evidence raised a presumption of negligence on the part of the defendant.

We have considered the remaining questions presented by the assignments of error, but we do not think they are of sufficient importance to affect the result of the trial, except as to the assignment that the verdict is excessive. We are of the opinion that this assignment is good and should be sustained. We think that the verdict of $20,000 should be reduced to $12,500.

As to the defendant Kansas City Structural Steel Company, the judgment is reversed and the action is dismissed. As to the defendant Verde Tunnel & Smelter Railway Company, it is ordered that, should the plaintiff elect to file a remittitur in this court within twenty days hereafter in the amount of $7,500, judgment shall be entered in this court in favor of the plaintiff and against the defendant Verde Tunnel & Smelter Railway Company, and the sureties upon the bond on appeal for the remainder of the judgment appealed from, to wit, $12,500, with cost-in the trial court and this court; otherwise let the judgment be reversed and the cause remanded for a new trial.

ROSS, C. J., and McALISTER, J., concur.