Gray v. Baltimore & OR Co.

• Decision Date: 05 March 1928
• Docket Number: No. 3888.,3888.
• Citation: 59 ALR 461,24 F.2d 671
• Parties: GRAY v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

59 ALR 461, 24 F.2d 671 (1928)

GRAY v. BALTIMORE & O. R. CO.

No. 3888.

Circuit Court of Appeals, Seventh Circuit.

March 5, 1928.

James G. Burnside, of Vandalia, Ill., for plaintiff in error.

Rudulph J. Kramer, of East St. Louis, Ill., for defendant in error.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

Plaintiff in error (plaintiff), a passenger on defendant's train, was injured when the train of eleven cars ran into an open switch 1¼ miles west of the town of Aviston, Ill., at 10:47 on the night of October 3, 1924. About 9:30 that evening a freight train passed through that switch, going west. The switch was properly closed and locked behind the freight train, and had burning upon its standard the usual oil-burning lamp, which showed green down the main track when the switch was closed and red when it was open. The freight crew saw near the switch a negro tramp, with something in a bag or package, and a small crowbar over his shoulder. Later the negro sawed through the switch lock and opened the switch.

It is admitted that the switch light was out before the wreck occurred. There were on the switch standard blades or banners, painted green on one side and red on the other. When the switch was open, the red could be seen down the main line not over 250 feet; the kind of night having a good deal to do with it. Further facts will appear in the discussion.

The first count of the declaration avers that defendant so negligently drove and propelled its locomotive that the train, including the car in which plaintiff was a passenger, was derailed.

The second count avers that defendant negligently failed to keep and maintain a light on the switch, and by its agents in charge of the train, as it approached the switch, wholly failed to observe that the light on the switch did not indicate that the switch was closed, but that it then and there negligently and carelessly operated the train, so that the train was run into the switch at a high rate of speed, without stopping to examine the switch.

The third count charges that, after having seen the negro in the vicinity of the switch, it was defendant's duty to have placed a guard on the switch, or to notify the persons in possession of the passenger train of threatened danger, etc. It is not urged that there is evidence to support this third count.

The court directed a verdict for defendant, and that is the basis for the only assignment of error relied on.

Plaintiff's first proposition is that, as it is admitted that he was a passenger on defendant's train, and was injured when the train was derailed, there arose therefrom a presumption that the injury was caused by defendant's negligence, and that the law required the court to submit the case to the jury.

There has been, in both the state and federal courts, a wide range of discussion of the maxim "res ipsa loquitur." What the maxim means, when it is applicable; whether, if applicable, the burden of proof shifts to the defendant; whether, if applicable, the case must go to the jury; whether, if special acts of negligence are alleged, the maxim applies — are all questions that have been many times discussed and decided in different ways. In many of the cases, it is not shown what issues were made by the pleadings.

In Sweeney v. Erving, 228 U. S. 233, 238, 33 S. Ct. 416, 418 (57 L. Ed. 815, Ann. Cas. 1914D, 905), the court said: "Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence."

In Francey v. Rutland, 222 N. Y. 482, 119 N. E. 86, the court said the inference is drawn, "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." Cited in Central R. Co. v. Peluso, 286 F. 661, 663 (2d C. C. A.).

The maxim "res ipsa loquitur" has no relation to, and in no way affects, the rule that plaintiff is required by averments to disclose the cause of action relied on. He may state his case in as many ways as he sees fit in separate counts. If a count alleges specific acts of negligence, plaintiff may support that count by any competent evidence tending to show those acts. If the charge of negligence is so general that it will be sustained by showing facts to which the maxim "res ipsa loquitur" will apply, such facts may be shown.

There is not in this case a general charge of negligence in the construction or maintenance of the railroad, or of any of the equipment or appliances. The first count is based upon the negligent operation of the locomotive. While the allegation is not specific as to the negligence, yet it is so far specific that it is limited to the handling of the locomotive. No reference is made to the open switch. The second count is a specific allegation that those in charge of the locomotive failed to see that the switch light was out and stop the train before it went into the open switch. The case was tried, and argued here, upon the theory that the engineer was negligent in not seeing that the light was out, and in not stopping the train before he reached the switch.

We are of opinion that the maxim "res ipsa loquitur" has no application in this case. Negligence is never presumed. Under the maxim "res ipsa loquitur," negligence is only inferred from the surrounding circumstances in those cases where the act of negligence is not known. If the negligence is known, there is no justification for the drawing of inferences. In this case, the cause of the open switch was a matter of common knowledge, and was fully known to the plaintiff. The switch was found open into the siding. The derailing of the cars was caused by the derailing device, properly in place upon the switch rails. The sawed lock was found soon after the accident near the switch. The negro was apprehended, convicted, and sent to prison, because he sawed the lock and opened the switch. The plaintiff in no way challenges those facts, but, on the contrary, he bases his third count upon the failure of defendant to guard the switch against the negro. The switch was taken under the control of the negro at the time he sawed the lock, and from that time until the wreck it cannot be said that it was solely under the control of the defendant.

Whether the engineer was negligent in any particular as charged presented a question of fact, that could in no way be presumed from the fact that the accident happened. But assuming, for the sake of the argument, that the maxim does apply, was it error for that reason to take the case from the jury? The negligence of the engineer will be later considered.

In the Sweeney Case, supra, the court said that, when res ipsa loquitur applies, "it has not the effect of shifting the burden of proof." And again:

"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."

Taken in connection with the whole paragraph quoted, we understand that, in using the words "that they make a case to be decided by the jury," the court meant that, unexplained, the facts made a case for the jury. Otherwise, that clause would be inconsistent with those other clauses, "it is evidence to be weighed, not necessarily to be accepted as sufficient," and "they call for explanation or rebuttal, not necessarily that they require it."

If we should hold, under the facts in this case, that on the theory of res ipsa loquitur the case must go to the jury, such a holding would not be in harmony with Small v. Lamborn, 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597, where the court restated a well-known rule:

"The rule for testing the direction of a verdict, as often has been held, is that where the evidence is undisputed, or of such conclusive character that if a verdict were returned for one party, whether plaintiff or defendant, it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party."

If the case, without reference to the negligence of the engineer, had been submitted to the jury, it unquestionably would have been the duty of the court to set aside any verdict in favor of the plaintiff. In Dierks Lumber Co. v. Brown, 19 F.(2d) 732, 735 (8th C. C. A.), the court, speaking of the maxim res ipsa loquitur, said:

"This rule does not relieve the plaintiff from the burden of showing negligence. * * * 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."

We are of opinion...