Firebaugh v. Seattle Elec. Co.
| Decision Date | 11 December 1905 |
| Citation | 82 P. 995,40 Wash. 658 |
| Court | Washington Supreme Court |
| Parties | FIREBAUGH v. SEATTLE ELECTRIC CO. |
Appeal from Superior Court, King County; Geo. E. Morris, Judge.
Action by Franklin Firebaugh, an infant, by W. R. Kelly, his guardian ad litem, against the Seattle Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Hughes McMicken, Dovell & Ramsey, for appellant.
Brady & Gay, for respondent.
The action was brought by the respondent, to recover damages for personal injuries sustained by jumping from a front platform of a street car operated by the appellant company, and on which he was a passenger. The complaint alleges, among other things, that the defendant carelessly and negligently used the said car when it was out of repair in its motor power and in its appliances appertaining thereto; that while the plaintiff was such passenger on said car, by reason of defendant's negligence, the controller, machinery, and appliances of said car exploded, and filled the vestibule thereof with smoke and flames to such an extent that all the front portions of said car became greatly heated; that by reason thereof the plaintiff was placed in a situation of apparent and imminent peril, and was dominated by the peril of impending danger, and believed that the only way he could save himself was to jump from said car, and without time to deliberate, and acting on the instinct of self-preservation did jump and was thrown against hard substances beside the track, and thereby injured. The defendant, in its answer admitted that the plaintiff was a passenger, and that he did jump from the car at the time and place alleged, but denied every allegation of negligence on its part, and pleaded affirmatively contributory negligence on the part of the plaintiff in carelessly and negligently jumping, or climbing over the gate on the platform of its car while the same was closed. The reply denied contributory negligence. The case was tried to a jury, which resulted in a verdict for the plaintiff. Judgment followed, and this appeal is taken therefrom.
There are but two assignments of error, the first that the court erred in giving instruction No. 5, which was as follows: 'When a controller upon a car of a street railway company blows out or burns out, the law presumes that such blowing or burning resulted from some defect of the controller or other appliances of the car, or means used by the company in the operation of the car, and in such a case it devolves upon the company to show that such burning or blowing out did not result from any cause which the highest degree of care on its part could have prevented.' Assignment 2 is that the court erred in denying defendant's challenge to the legal sufficiency of the evidence, and in refusing to instruct the jury to return a verdict for the defendant. The allegation of contributory negligence raised in the answer is not urged here.
It is contended by the learned counsel for appellant that the doctrine of 'res ipsa loquitur' does not apply in a case of this kind, and that it was improper in this case to tell the jury that they were entitled to find the appellant negligent upon proof of the accident alone; and the case of Allen v. Northern Pacific Ry. Co., 35 Wash. 221, 77 P. 204, 66 L. R. A. 804, is cited in support of the contention that the doctrine of 'res ipsa loquitur' has been somewhat modified by this court. It is insisted by the appellant that it is manifest that this court has not intended to announce the rule that there is a presumption of negligence unless it is apparent that the accident could not have happened without negligence on the part of the carrier. This is no doubt true, for the rule of 'res ipsa loquitur' is based upon the apparent fact that the accident could not have happened without negligence on the part of the carrier, or upon the literal meaning of the expression that the thing itself speaks, and shows prima facie that the carrier was negligent. The cases which we will hereafter cite do not in any way contradict the further contention of the appellant that a careful analysis of the better considered decisions shows that negligence will not be presumed from the mere fact of accident which is as consistent with the presumption that it was unavoidable as it is with negligence; and therefore, if it be left in doubt what the cause of the accident was, or if it may as well be attributable to the act of God or unknown causes as to negligence, there is no such presumption. As we have said, this does not affect the principle of law that, when, by reason of the machinery and appliances used by the common carrier wholly under its control, a passenger is injured, this fact shows prima facie negligence on the part of the carrier.
Looking to eminent authority for expression on this subject, we find the following announcement in Nellis on Street Railroad Accident Law, pp. 590, 591: 'Where the plaintiff is a passenger on a street car, a prima facie case of negligence is made out by showing the happening of the accident during the course of transportation; and, if the injury was caused by apparatus wholly under its control, furnished and applied by it, a presumption of negligence on the part of the company is raised, and the burden is on the latter to prove itself not guilty of negligence.' The same rule is substantially laid down by Shearman & Redfield on the Law of Negligence and by all other authority. In Gleeson v. Virginia Midland R. R. Co., 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458, Stokes v. Salstonstall, 13 Pet. 181, 10 L.Ed. 115, and New Jersey R. & Trans. Co. v. Pollard, 22 Wall. 341, 22 L.Ed. 877, it has been settled law in this court that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance, and was followed at the present term in Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, ...
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