Dixie Peanut Co. Inc v. Lewis' Adm'x

• Decision Date: 16 March 1916
• Citation: 88 S.E. 72
• Parties: DIXIE PEANUT CO., inc. v. LEWIS' ADM'X.
• Court: Virginia Supreme Court

88 S.E. 72

DIXIE PEANUT CO., inc.

v.LEWIS' ADM'X.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Hustings Court of Petersburg.

Action by the administratrix of Charles A. Lewis against the Dixie Peanut Company, incorporated. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

George Bryan, of Richmond, for plaintiff in error.

Gilliam & Gilliam, of Petersburg, for defendant in error.

HARRISON, J. This action was brought by the administratrix of Charles A. Lewis against the Dixie Peanut Company, incorporated, to recover damages for personal injuries, resulting in death, alleged to have been caused by the negligence of the defendant company. The trial resulted in a verdict and judgment in favor of the plaintiff, to which this writ of error was awarded.

There was a demurrer to the declaration, which we think was properly overruled. The record shows that the plaintiff's intestate was killed by the fall of a freight elevator that he was operating in the peanut factory of the defendant. The only witnesses of the accident were three colaborers of the deceased. These four men were at the time engaged in handling the raw peanuts as they were received in bags from the farmers on the first floor of the factory, and carrying them to the fifth floor, by means of the elevator, and there distributing them for shelling and other treatment. The load consisted of two trucks with five bags of peanuts on, each. When this load was landed at the fifth floor and disposed of, the elevator would return to the first floor for another load. It appears from the plaintiff's evidence that, at the time of the accident the deceased and another laborer with two empty trucks boarded the elevator to descend from the fifth floor to the first; that the deceased, who was operating the elevator at the time, pulled the rope for the downward trip, when the elevator gave a "bang, " "gave a little buzz, " and shot to the basement. The evidence of the witnesses for the plaintiff fails to show or to even suggest the cause of the accident. Subsequent investigation showed that the cable, which was three-quarters of an inch thick, composed of five plies, and made of the best material used for cable purposes, had broken, but why it broke, or that the break was due to any negligent failure of duty on the part of the defendant, was not shown.

The burden was upon the plaintiff to show that the accident was the result of the defendant's negligence. So far from sustaining that burden, the testimony of the plaintiff amounts to no more than proof that the accident happened, without any proof ofground for imposing upon the defendant liability therefor. The negligence of a master cannot be inferred from the mere occurrence of an accident by which his servant is injured. That fact alone does not raise even a prima facie presumption that the master has been guilty of negligence or a breach of duty to his servant. Negligence of the master is an affirmative fact to be established by the injured servant The evidence in such case must show more than a mere probability of negligence, and it is not sufficient that it is consistent equally with the existence or nonexistence of negligence. There must be affirmative and preponderating proof of defendant's negligence. Moore...