Colorado Springs & Interurban Ry. Co. v. Reese

• Decision Date: 03 December 1917
• Docket Number: 8625.
• Citation: 169 P. 572,69 Colo. 1
• Court: Colorado Supreme Court
• Parties: COLORADO SPRINGS & INTERURBAN RY. CO. v. REESE.

169 P. 572

69 Colo. 1

COLORADO SPRINGS & INTERURBAN RY. CO. v. REESE.

No. 8625.

Supreme Court of Colorado, En Banc.

December 3, 1917

Error to District Court, El Paso County; W. S. Morris, Judge.

Action by David Reese against the Colorado Springs & Interurban Railway Company, a corporation. To review a judgment for plaintiff, defendant brings error. Affirmed.

Scott J., dissenting.

Chinn & Strickler, of Colorado Springs, George W Musser, of Denver, and J. Alfred Ritter, of Colorado Springs for plaintiff in error.

Orr, Robinett & Mason and L. W. Cunningham, all of Colorado Springs, for defendant in error.

WHITE C.J.

Reese, plaintiff below, recovered a judgment against the Colorado Springs & Interurban Railway Company, a corporation, in damages for personal injuries sustained by him through the alleged negligence of the defendant corporation. The defendant operates a street car system in Colorado City, and on the afternoon of June 19, 1914, plaintiff was a passenger on one of its cars when an explosion occurred in or about the controller, appliances, and apparatus in the front of the car, whereby the vestibule and front part of the car became filled with smoke and flames. It is alleged that as a result thereof plaintiff was placed in a situation of apparent and imminent peril, and, believing that his safety required him to immediately leave the car, he, without further deliberation, jumped therefrom, and sustained the injuries of which complaint is made. The language in which the negligence of the defendant is charged is as follows, to wit:

'Plaintiff alleges that he sustained said injuries solely by reason of the negligence and carelessness of defendant and its employés having the management and control of said car at said time; that plaintiff is unable, for lack of knowledge, to definitely specify said negligence and carelessness, or to specify definitely the cause of said explosion; that plaintiff is informed and believes, and upon such information and belief alleges, that defendant negligently and carelessly provided, operated, and caused to be operated said car at said time when the controller, machinery, appliances, and parts of said car connected with and used in the operation and control of the motive power thereof were out of repair and insecure and in a defective condition, and that by reason thereof said car was dangerous and unsafe for the transportation of plaintiff as a passenger at said time; that plaintiff is, for lack of knowledge, unable to specify more fully than as above stated the insecure, unsafe, dangerous, and defective condition of said car, its machinery, appliances, apparatus, and parts aforesaid. And plaintiff further alleges that, while said car and its controller, machinery, appliances, apparatus, and parts aforesaid were insecure and in said dangerous, unsafe, and defective condition, the employés of defendant operating said car so carelessly and negligently operated the same as that in consequence of the aforesaid defective condition of said controller, machinery, appliances, apparatus, and parts of said car, and the careless and negligent manner in which the same was operated by the employés of defendant at said time, there was an explosion of the controller or some other part of the apparatus of said car unknown to plaintiff, which caused said car to become filled with smoke and flames; that plaintiff is unable, for lack of knowledge thereof, to more definitely allege the negligence or carelessness of the said employés in operating said car.'

The complaint was not questioned. The defendant, however, denied negligence, pleaded contributory negligence, and that the explosion was caused by a bolt or flash of lightning at the time coming in contact with the controller box located in the front vestibule of the car, causing the mechanism thereof to catch fire. By replication the plaintiff denied the material allegations of the answer, and alleged that the car was not equipped with sufficient and proper appliances for the purpose of arresting lightning, and if the car was struck by lightning, it was by reason of the negligence of the defendant.

At the close of the evidence defendant moved for an instructed verdict, which was refused, and this action of the court is presented as the first ground for reversal. The claim is that plaintiff did not prove the specific negligence alleged, and that a prima facie case for plaintiff may not arise under the doctrine of res ipsa loquitur. The basis of this contention is threefold: First, that having alleged a case of specific negligence, plaintiff thereby abandoned the right to the presumption arising from the rule by voluntarily taking upon himself the burden of proving the particular negligence charged; second, that the maxim may not be applied to a case growing out of the use of complicated machinery such as that here involved; and, third, that the evidence was insufficient to carry the case to the jury.

We think plaintiff has pleaded negligence both generally and specifically, and, if he has proved either, has established a cause of action against defendant. The cause of action was the injury sustained by plaintiff through the negligence of defendant and whether the former charged such negligence specifically, generally, or both, is immaterial when, as here, the manner of pleading was not questioned by defendant. Had plaintiff in one count alleged negligence generally as the cause of his injury it is clear that he could rely upon the maxim to establish it. It is equally certain that, had he, in a different count, set forth his cause of action by allegations of specific negligence, he could rely upon any pertinent evidence to establish the same. Colorado & Southern Railway Co. v. Jenkins, 25 Colo.App. 348, 138 P. 437. The legal presumption, when applicable, is conditioned on the absence of other evidence of negligence, not on the absence of averments of negligence in the complaint, and a party may rely upon it, even though his pleading states the facts of the negligence of which complaint is made, if such facts are the ones which the legal inference of negligence tends to establish. Walters, by Guardian Ad Litem, v. Seattle R. & S. Ry. Co., 48 Wash. 233, 93 P. 419, 24 L.R.A. (N. S.) 788, and cases cited in the note thereto approving this view. The presumption is simply a rule dispensing with actual evidence in the first instance, and applies where the circumstances, unexplained, point to negligence and would justify an inference thereof. Kansas Pacific Ry. Co. v. Miller, 2 Colo. 442, 457, 458.

Therefore under general allegations of negligence the application of the maxim would necessarily require a defendant to come forward with sufficient proof to overcome the presumption by showing a state of facts from which the jury would not be justified in inferring that any negligence of the defendant caused the accident from which the injury resulted; while under allegations of specific negligence only the burden of defendant would be discharged when from all the evidence the jury would not be warranted in finding that the accident causing the injury was due to the specific negligence alleged. Kluska v. Yeomans, 54 Wash. 485, 103 P. 819, 132 Am.St.Rep. 1121; Dearden v. San Pedro, L. A. & S. L. R. Co., 33 Utah 147, 93 P. 271.

The allegations of general and specific negligence were in no wise inconsistent, and proof of the specific negligence alleged would in no sense be adverse to the presumption arising from the facts of the accident, but entirely consistent therewith.

The contention of plaintiff in error that the complicated character of the machinery involved excludes the application of the doctrine of res ipsa loquitur does not meet our approval. The case of Beebe v. St. Louis Transit Co., 206 Mo. 419, 103 S.W. 1019, 12 L.R.A. (N. S.) 760, cited in support of the contention, is not in point. In that case the plaintiff, the injured party, was the servant of the defendant and in actual control of the mechanism in which the explosion causing the injury occurred. An entirely different situation arises where, as here, the injured party was a passenger upon the car of a common carrier, and such injury was occasioned by an explosion of unusual severity and character in machinery wholly within the control of the carrier. The following cases are directly in point: Chicago Union T. Co. v. Newmiller, 116 Ill.App. 625, affirmed in 215 Ill. 383, 74 N.E. 410; Firebaugh v. Seattle E. Co., 40 Wash. 658, 82 P. 995, 2 L.R.A. (N. S.) 836, 111 Am.St.Rep. 990.

In the instant case there was a contract relation between the parties, with the resulting duty of the carrier to exercise the highest degree of practicable care and skill to transport the plaintiff safely. The rule requiring such degree of care would be of little value if it were not enforced in judicial administration by a correlative rule of evidence. The application of the latter rule to a given case is simply a matter of common sense. It may, and usually does, apply where an unusual or unexpected accident happens caused by machinery under the exclusive management or control of a defendant. Under such circumstances the accident speaks for itself, and creates a presumption of defendant's negligence. It is not alone the injury, however, but the manner and circumstances thereof, that give rise to the presumption. In such cases the res includes the attending circumstances, and the application of the rule of res ipsa loquitur involves principally the question and sufficiency of circumstantial evidence to justify the jury in inferring the existence of the principal fact at issue--the defendant's negligence.

The doctrine does not dispense with the necessity that the plaintiff prove the fact of...