C. & O. Ry. Co. v. Baker
| Decision Date | 22 December 1927 |
| Citation | 149 Va. 549 |
| Parties | THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. KATE S. BAKER, ADMINISTRATRIX OF THE ESTATE OF M. H. BAKER, DECEASED. |
| Court | Virginia Supreme Court |
1. CARRIERS OF PASSENGERS — Negligence — Degree of Care to be Exercised by Carrier. — It is the duty of the carrier of passengers to use the highest degree of care for their safety known to human prudence and foresight, and it is liable for the slightest negligence, against which human care and foresight may guard.
2. CARRIERS OF PASSENGERS — Negligence — Degree of Care to be Exercised by Carrier — Care Applies to Running of Train and Equipment. — Derailment. The degree of care required of a carrier for the safety of its passengers applies not only to the manner in which its train is being run by its engineer, but also to the running gear and equipment of the engine, tender and cars, and to the way in which its road bed is constructed, and its ties and rails are laid and maintained; and, if the carrier fails to exercise such care in any of these particulars, and such failure causes a derailment which results in injury to a passenger, the carrier is liable therefor.
3. CARRIERS OF PASSENGERS — Action by Passenger for Negligence — Basis of Liability — Burden of Proof. — In an action against a carrier by a passenger, the failure of the carrier to perform the duties imposed by law upon it, is the basis of liability to the passenger for injury, and the burden of proof is on the injured passenger to establish the negligence of the carrier. This burden does not shift, but continues through the case.
4. CARRIERS OF PASSENGERS — Presumption of Negligence. — While the negligence of a carrier of passengers, in an action by a passenger for injuries, is never presumed from the mere fact of injury, yet an injury may occur under such circumstances as will warrant an inference or presumption of negligence.
5. CARRIERS OF PASSENGERS — Derailment — Injury to Passenger — Presumption of Negligence. — Where a passenger is injured in a derailment of a passenger coach, by reason of the carrier's duty as such, and the fact that the train and track are under its exclusive control and management, and the accident is such that in the ordinary course of things it does not occur, if those who have the control or management use proper care, the liability of the carrier is to be determined upon the principle of negligence in accordance with the phrase or maxim, res ipsa loquitur; or, in other words, an injury under such circumstances is held to warrant the presumption of negligence, which puts the burden upon the carrier to disprove the existence of negligence by evidence that as a matter of fact all proper and reasonable care had been employed.
6. CARRIERS OF PASSENGERS — Derailment — Action by Passenger for Injuries — Prima Facie Case — Case at Bar. — In the instant case, an action by a passenger against a carrier for injuries sustained in a derailment, the plaintiff proved that he was a passenger of the defendant; the derailment of the coach; his injuries in consequence thereof, and the extent of his injuries. He also undertook to prove by a farmer and automobile mechanic that there were some rotten ties under the broken rail that contributed to the accident.
Held: That the passenger made out a prima facie case, by the aid of the legal presumption, upon proof simply of the derailment and the consequent injury to him while a passenger.
7. CARRIERS OF PASSENGERS — Action by Passenger — Derailment — Presumptions and Burden of Proof. — In an action by a passenger for injuries sustained where a car in which he was traveling was derailed, upon the plaintiff making out a prima facie case by proving the derailment and his consequent injury, the burden was upon the defendant to show that it exercised that high degree of care required of it by law.
8. CARRIERS OF PASSENGERS — Derailment — Action by Passenger — Defendant showing that Derailment was Due to Transverse Fissures — Case at Bar. — In the instant case, an action by a passenger against a carrier for injuries sustained in a derailment, the plaintiff made out a prima facie case by proving the derailment and his consequent injuries. Defendant proved that the track at the point of the derailment was ballasted with stone; that the rails were the best standard rails; that the ties were sound white oak ties; that the track was regularly and properly inspected according to the best practice, and that the sole cause of the breaking of the rail that caused the derailment was transverse fissures therein.
Held: That thereupon it became necessary for the defendant to prove what a transverse fissure was, how it occurs in a rail, and whether any means had been developed to prevent it.
9. CARRIERS — Derailment — Transverse Fissures. — A transverse fissure is a term applied to a type of fracture which has its origin in the interior of the head of a rail and which progressively enlarges from a definite nucleus.
10. CARRIERS — Derailment — Transverse Fissures — Prevention. — So far, notwithstanding the prevalence of fractures due to transverse fissures, at present there does not appear to be any remedy or means of discovering this latent defect.
11. CARRIERS OF PASSENGERS — Derailment — Transverse Fissures — Case at Bar. — In the instant case, an action by a passenger against a carrier for injuries incurred in a derailment, the derailment was due to the breaking of a rail, and from defendant's evidence it appeared that the sole cause of the breaking of the rail was transverse fissures. The particular rail that caused the derailment had been down seven years, and had been inspected twice a day by the track walker, and at other times by other employees, with the result that no defect was discovered in the rail. Every precaution suggested by experience and science had been taken to insure the safety of this particular rail.
Held: That a verdict and judgment for plaintiff should have been set aside and judgment entered for defendant.
NOTE — For an addendum to note denying a rehearing, see Chesapeake & Ohio Ry. Co. Baker, 150 Va.
ON REHEARING.
12. NEGLIGENCE — Res Ipsa Loquitur. — The doctrine of res ipsa loquitur is one of presumption to be resorted to only in the absence of positive evidence.
13. CARRIERS — Derailment — Transverse Fissures — Application of Doctrine of Res Ipsa Loquitur — Case at Bar. — The instant case was an action by a passenger against a carrier for injuries sustained in a derailment. It was shown beyond doubt that the accident was due to a defective rail, more specifically to a transverse fissure. This rail was made by a standard rail maker, and had been subjected to all the tests which are applied by those corporations engaged in that business. These tests revealed no defect, and there was nothing to put anyone on notice that any such latent trouble existed.
Held: That the doctrine of res ipsa loquitur had no application.
14. CARRIERS OF PASSENGERS — Injuries Sustained in a Derailment — Ties not in First Class Condition — Case at Bar. — The instant case was an action by a passenger against a carrier for injuries sustained in a derailment. It was shown that the accident was due to a defective rail — a transverse fissure. Taking the case as upon a demurrer to evidence, it may be conceded that some of the supporting ties were not in first class condition, but no more was required of the railway than that they should appear to be in condition to carry the load and bear the stress of good rails used in an ordinary way. There was nothing to indicate that the ties were not sufficient for their purpose. The railway had a right to assume that the rail was a good one. The burden of proof was upon the railroad to show that it maintained a roadway sufficient to carry normal traffic upon good rails.
Held: That this burden was carried by the railroad, and that the plaintiff failed to prove negligence — that is, a state of facts which would indicate the existence of danger from defective ties or from some other source.
Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
D. H. Leake and Leake & Spicer, for the plaintiff in error.
Haden & Haden and M. J. Fulton, for the defendant in error.
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