Dierks Lumber & Coal Co. v. Brown

Decision Date09 May 1927
Docket NumberNo. 7562.,7562.
PartiesDIERKS LUMBER & COAL CO. v. BROWN.
CourtU.S. Court of Appeals — Eighth Circuit

Abe Collins and J. S. Lake, both of De Queen, Ark. (Lake, Lake & Carlton, of De Queen, Ark., and John S. Kirkpatrick, of Kansas City, Mo., on the brief), for plaintiff in error.

Paul Jones, Jr., of Texarkana, Ark. (W. P. Feazel, of Nashville, Ark., and H. P. Epperson, of Dierks, Ark., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and POLLOCK, District Judge.

KENYON, Circuit Judge.

Defendant in error was plaintiff, and plaintiff in error was defendant, in the trial court. The parties will be so designated here.

The action was commenced in the state court of Arkansas and removed to the federal court. The original complaint charged that plaintiff was injured, while in her father's store in the town of Dierks, by reason of a shock from an excessive current of electricity when she attempted to turn on the same for the purpose of operating a sewing machine, and that defendant was negligent in operating its lighting plant, in "that it had negligently permitted its transformer to get out of repair to the extent that it failed to function properly, and because thereof an excessive voltage of electricity was permitted to come onto the electric wire that she was using in operating the sewing machine in the building aforesaid; second, the defendant was further negligent in permitting its wires to become crossed and thereby let onto the light wire entering the building in which she was at work an excessive voltage of electricity, which excessive voltage of electricity caused the (shock) and injuries herein complained of."

Plaintiff, after the case was in the United States District Court, amended her complaint by alleging that defendant was negligent in permitting its wires, which supplied electricity used by plaintiff in the operation of her sewing machine, to become grounded, and in permitting other defects to arise and exist in its wires, apparatus, appliances and machinery, which were to the plaintiff unknown. To this defendant filed a special demurrer and motion to make the amendment to the complaint more definite and certain. The court sustained the motion and plaintiff then filed an amended complaint, alleging "that said injuries resulted directly from an overcharge of electricity passing through the wires of defendant leading and extending into the building through which the current was supplied for the operation of the sewing machine, because of defects in said electric system owned and operated by defendant and under its exclusive management and control, which defects are and were unknown to plaintiff, and of which she has not been able to obtain any definite information; that said acts of negligence herein stated were the direct and proximate cause of plaintiff's injuries herein set out; that because of her said injuries she has been damaged in the sum of $25,000." To this defendant filed answer. Later plaintiff filed a second amended complaint, alleging that an excessive current of electricity passed from defendant's wire leading into the building through which the current was supplied for the operation of plaintiff's sewing machine, which current passed through plaintiff's body because of defects in said electric system, attachments, and appliances owned and operated by defendant, and under its exclusive management and control, and that these defects were unknown to plaintiff, and that she could not after diligent effort obtain any definite information with relation thereto. No specific negligence was alleged.

We have referred rather specifically to these numerous pleadings, as reference may hereafter be made thereto. The jury returned a verdict for plaintiff for $2,500. From judgment entered thereon this writ of error is prosecuted.

Defendant contends that the trial court erred in invoking the doctrine of res ipsa loquitur in its charge to the jury; in permitting plaintiff to attempt to prove specific negligence; in refusing instructions asked; in denying the motion of defendant at the close of all the testimony for a directed verdict. We limit our consideration to the last proposition, viz.: Was there sufficient evidence of negligence on the part of defendant to sustain a verdict for plaintiff?

The action is one based on negligence. Plaintiff could recover only upon the theory of defendant's negligence. While an attempt was made to prove specific negligence by showing there was a broken wire outside of the building where plaintiff was hurt, the case was tried on the theory that the negligence of defendant was not known, and that the doctrine of res ipsa loquitur applied. If plaintiff was a trespasser at the time of the injury and had no right to the use of the electricity to operate the sewing machine, as claimed by defendant, the doctrine of res ipsa loquitur would of course not apply. However, for the purpose of this opinion we pretermit that and other questions, and consider the case as one where a duty was owing to plaintiff on the part of defendant, and the circumstances as warranting application of the doctrine of res ipsa loquitur. Some general observations on that subject are made in Sweeney v. Erving, 228 U. S. 233, 238, 239, 240, 33 S. Ct. 416, 417 (57 L. Ed. 815, Ann. Cas. 1914D, 905), where the court says: "The general rule in actions of negligence is that the mere proof of an `accident' (using the word in the loose and popular sense) does not raise any presumption of negligence; but in the application of this rule it is recognized that there is a class of cases where the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed, by the party charged with care in the premises, the thing that happened amiss would not have happened. In such cases it is said, `res ipsa loquitur,' the thing speaks for itself; that is to say, if there is nothing to explain or rebut the inference that arises from the way in which the thing happened, it may fairly be found to have been occasioned by negligence. * * * In our opinion `res ipsa loquitur' means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff."

In Transportation Co. v. Downer, 11 Wall. 129, 134 (20 L. Ed. 160) the Court said: "A presumption of negligence from the simple occurrence of an accident seldom arises, except where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible."

The doctrine of res ipsa loquitur raises a rebuttable fact presumption of negligence. The "thing itself speaks," but, as said in Francey v. Rutland R. R. Co., 222 N. Y. 482, 119 N. E. 86: "This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that unless an explanation be given the only fair and reasonable conclusion is that the accident was due to some omission of defendant's duty."

This rule does not relieve the plaintiff from the burden of showing negligence, and does not shift the burden of proof in the case. The presumption arising from the circumstances may be sufficient to take the case to the jury, unless the entire evidence is such that the presumption cannot stand against it. If no further evidence appeared in this case than circumstances showing that an excessive current of electricity of high voltage unnecessary, unsafe and unsuitable for the purposes of the store was transmitted over defendant's wires into the store and that plaintiff suffered injury therefrom, such circumstances would point to negligence and be sufficient, no facts or circumstances being shown to disprove the same, to take the case to the jury. As the Supreme Court said in the Sweeney Case, supra: "The circumstances are evidence of negligence." Central R. Co. v. Peluso (C. C. A.) 286 F. 661.

The defendant in carrying on the business of selling and conveying over its wires a dangerous electric current, while not an insurer of the safety of those who might rightfully use the same, was required to exercise a high degree of care to protect those likely to come in contact therewith commensurate with the dangerous character of, and consistent with the practical operation of, the business. That duty extended not only to the erection, maintenance and operation of its plant and apparatus, but likewise to inspection thereof to discover defects. Perhaps as strong a language on this subject as is to be found anywhere is the language of this court in Union Light, Heat & Power Co. v. Arntson, 157 F. 540, 541, 542: "Defendant owed a duty to its patron, Stone, to exercise a proper degree of care to prevent a dangerous current of electricity from entering his dwelling. This duty on the plainest principles of law and common sense extended to his family, his servants, his employés, and others who might rightfully be upon his premises. The current was a subtle and dangerous agent, and when uncontrolled was such as might be fatal to any occupant of a...

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