79 N.W.2d 899 (Mich. 1956), 67, Kaminski v. Grand Trunk Western R. Co.

Docket Nº:67.
Citation:79 N.W.2d 899, 347 Mich. 417
Opinion Judge:BLACK, Justice.
Party Name:Mitchell KAMINSKI, Plaintiff and Appellee, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant and Appellant.
Attorney:[347 Mich. 419] Carl F. Davidson, Detroit, for plaintiff and appellee. John J. Beach and Konrad D. Kohl, Detroit, of counsel. Tryand & Tendler, Detroit, for defendant and appellant. James P. Tryand, Detroit, of counsel.
Judge Panel:Before the Entire Bench except BOYLES, J.
Case Date:December 28, 1956
Court:Supreme Court of Michigan

Page 899

79 N.W.2d 899 (Mich. 1956)

347 Mich. 417

Mitchell KAMINSKI, Plaintiff and Appellee,



Defendant and Appellant.

No. 67.

Supreme Court of Michigan.

December 28, 1956

Page 900

[347 Mich. 419] Carl F. Davidson, Detroit, for plaintiff and appellee. John J. Beach and Konrad D. Kohl, Detroit, of counsel.

Tryand & Tendler, Detroit, for defendant and appellant. James P. Tryand, Detroit, of counsel.

Before the Entire Bench except BOYLES, J.

BLACK, Justice.

This is a negligence case. The rule of conjectural cause is pressed upon us by a defendant held actionably negligent in the court below. We are remined of decisions alleging that this Court does not recognize the doctrine res ipsa loquitur. It is said that the evidence before us proves an accident only, and that there is a want of proof or inference from proof justifying the verdict and judgment under review. The question is recurrently vexing, yet it need not be, at least in so marked a degree as modern experience discloses.

There are worthly landmarks. All that is needed is devotional reidentification thereof. Seventy years ago another defendant's counsel, having criticized then recent decisions dealing with the law of negligence, requested that this Court 'lay down some definite and fixed rule by which we would be governed upon this question', Carver v. Detroit & Saline Plank-Road Co., 61 Mich. 584, 591, 28 N.W. 721, 724. 1 Our predecessors did so on that occasion, following extended review of authorities without as well as within Michigan. Having pointed out that it is for the trial judge to say whether negligence may be inferred from the evidence and, if submission be made, for the jury to say whether negligence ought to be inferred therefrom, the Court went on to say, 61 Mich. at page 593, 28 N.W. at page 725:

'The difficulty is not in the rule, but in the application of it to the facts of the particular case. The testimony is often of such a nature that the trial [347 Mich. 420] judge is greatly embarrassed to determine whether any facts have been established by the evidence from which negligence may be reasonably inferred. In all cases of doubt, the proper method is to submit the evidence to the jury, under proper caution and instructions, to determine whether, from the facts as they shall find them established by the evidence, negligence ought to be inferred.'

It will be noted, on examination of Carver, that Michigan's nationally recognized authority, Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99, is cited in lead support of the quoted rule. It will

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be noted, too, that such rule has been pursued and applied for many years in a variety of cases. Instances of its application will be found in Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227; Parker v. Union Station Ass'n, 155 Mich. 72, 118 N.W. 733; Waidelich v. Andros, 182 Mich. 374, 148 N.W. 824; Burghardt v. Detroit United Ry., 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; Butrick v. Snyder, 236 Mich. 300, 210 N.W. 311; Collins v. Perry, 241 Mich. 361, 217 N.W. 32; Pattinson v. Coca-Cola Bottling Co. of Port Huron, 333 Mich. 253, 52 N.W.2d 688 and Spiers v. Martin, 336 Mich. 613, 58 N.W.2d 821. It appears to have been epitomized best by Mr. Justice Cooley (3 Cooley on Torts, 4th Ed., § 481, p. 389) in these words:

'But in a very large proportion of the cases in which negligence is counted upon, the facts are of that ambiguous quality, or the proper conclusion so doubtful, that different minds would be unable to agree concerning the existence of fault, or the responsibility for it. The question will often be, does the defendant appear to have exercised the degree of care which a reasonable man would be expected to exercise under like circumstances? To such a question a man of exceeding cautions temperament might respond that he did not; another more sanguine and bold might say he did; and by the side of [347 Mich. 421] one or the other of these would the rest of the community range themselves, each person largely affected by temperament and perhaps by his own experience, but firmly maintaining that rule to be a proper one which now, on a retrospective examination of the facts, seems to him to be such.

'If the judge, in such a case, were to pass upon negligence as a question of law, he must, in doing so, be endeavoring to enforce a rule of a variable nature, which must take its final coloring from the experience, training, and temperament of the judge himself; a rule which his predecessor might not have accepted, and which his successor may reject, and upon which a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different.'

Assuredly, judges are mortal men, 'and men are different.' For that standout reason the case at hand must indeed 'be a very clear one which would justify the court in taking upon itself this responsibility' 2 (that of instructed verdict in a negligence case). It is thus right to say that the trial judge's immediate duty, motion for direction having been made with address to the rule of conjectural choice between equally plausible inferences, is to determine on favorable view of the inference plaintiff relies upon whether it stands equiponderant at best with such as is, or are, urged by the defendant. If the answer is affirmative, then and only then will the judge be justified in proceeding as moved.

Some 30 years ago the supreme court of Alabama adopted a workable testdefinition designed toward ascertainment of what is conjectural and what is [347 Mich. 422] not in negligence cases. That court recently referred to such definition as having 'been quoted until it has become a classic', City of Bessemer v. Clowdus, 261 Ala. 388, 74 So.2d 259, 263. We quote it as follows from the Bessemer case:

"As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two

Page 902

or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence."

Much the same language will be found in Juchert v. California Water Service Co., 16 Cal.2d 500, 106 P.2d 886, 890, where the question was considered at length. Quoting from an earlier case the court said:

"If, however, plaintiff has proven sufficient facts to justify a verdict upon one theory, the fact that there may be one or more other seemingly rational explanations of the episode in no manner precludes a recovery or invalidates the verdict. These are mere matters of argument to be presented to the jury."

Turning now to the record: Reference is made initially to the defendant's official report of this accident. The report was filed in March of 1953 with the public service commission. It describes the occurrences we are to consider in the following language:

[347 Mich. 423] 'It is reported that as locomotive was moving over private track in factory yard it struck a plant 4-wheel trailer parked too close to track. As trailer rolled into clear it struck factory employee working near by.'

Subject to presently unimportant exceptions both parties have accepted the trial judge's statement of facts as set forth in his opinion denying defendant's motion for new trial. It follows:

'On March 17, 1953, at 10:20 P.M. plaintiff, Mitchell Kaminski,...

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