Gulf & S. I. R. Co. v. Odum
| Decision Date | 03 December 1923 |
| Docket Number | 23340 |
| Parties | GULF & S. I. R. Co. v. ODUM |
| Court | Mississippi Supreme Court |
(En Banc.) January 1, 1920
CARRIERS. Presumption of negligence may be rebutted, by negative as well as positive testimony.
The presumption of negligence afforded by section 1985, Code of 1906 (section 1645, Hemingway's Code), as well as the presumption of negligence under the doctrine of res ipsa loquitur, may be met and overcome by a defendant by negative as well as positive testimony. A defendant may be exculpated from such presumption of negligence, where the facts and circumstances of the injury complained of completely rebut such presumption, or where the evidence shows an absence of any facts or circumstances from which such presumption could arise.
2 CARRIERS. Evidence as to injury to passenger by unexplained explosion held to rebut presumption of negligence arising therefrom.
Where a passenger was injured by an unexplained explosion in the car and near the seat on which he was sitting and there was left no sign or marks on or about said seat or in said car by such explosion, and the railroad company showed that on the morning of the explosion the car in which the plaintiff was a passenger was inspected and cleaned and no explosive left in it and that none was afterwards seen in it, such evidence completely rebutted any presumption that arose on account of such explosion, and entitled the railroad company to a directed verdict.
APPEAL from circuit court of Lamar county, HON. A. E. WEATHERSBY Judge.
Action by J. A. Odum against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
Reversed.
B. E Eaton and T. J. Wills, for appellant.
It was the contention of the plaintiff in the court below that to show the injury occasioned by an explosion in the coach of the passenger train was sufficient to invoke the aid of the prima-facie statute notwithstanding the fact that the train was standing still, and the explosion was occasioned by some foreign substance, not a part of the equipment, incident to the operation of the train at the point where the explosion occurred.
It was the contention of the plaintiff in the court below that proof of injury made a prima-facie case. It was the contention of the defendant below that in addition to the proof of the injury that proof must show that it was inflicted by the running of the engine and cars, etc., before the prima-facie case was made out. It is this difference as to the principal that constitutes the major question presented on this appeal.
The first count of the declaration charged a specific negligence on the part of the defendant. It charged that the defendant negligently permitted some kind of powerful and dangerous explosive to be concealed under or about the seat of the coach and that the defendant knew, or by the exercise of the care imposed upon it by law should have known of the presence of this explosive substance. If there was an explosive substance under the seat or near the seat that caused this explosion and alleged injury to the plaintiff and he sought to recover from the defendant because of the negligence in placing it there, or the negligence in permitting it to remain there.
In 20 R. C. L., at page 194, the rule of law as to the burden of proof is thus stated: "One who seeks to recover of another on the ground of negligence on the part of that other assumes the burden of maintaining not only the negligence complained of, but that such negligence has occasioned him loss."
The plaintiff in the second count of the declaration charged general negligence so as to bring the case within the law of presumptions that arise from the proof of injury inflicted by a specific thing. This court said in the case of Gulfport and Mississippi Coast Traction Company v. Hicks, 76 So. 873: "It may be conceded then that the statutory presumption conspires with the doctrine of res ipsa loquitur and that both are applicable under the facts of this case."
Our prima-facie statute is but an extension of the doctrine of res ipsa liquitur to apply and raise the presumption of negligence where the proof shows that the injury was inflicted by the running of a train of cars, etc., in the same manner as under the res ipsa liquitur doctrine.
The plaintiff in this case did not invoke the res ipsa liquitur doctrine but invoked the prima-facie statute as is shown by the instruction, and it was on the prima-facie presumption of negligence raised by the statute that appellant seeks to maintain the judgment.
Speaking of this same principle, 20 R. C. L., page 194 says: "Where the facts are such as to raise a presumption of negligence (our prima facie), or give rise to the principle of res ipsa loquitur, the burden of proceeding is shifted to the defendant, and if he would escape an adverse finding he must adduce evidence to meet the plaintiff's case."
Discussing now the applicability of the prima-facie statute, we observe proof of injury within itself is not sufficient to set the statute in motion. The proof must show that the injury was inflicted by the engine or cars propelled by the dangerous agency of steam and running on tracks. This court said in the case of M. and O. R. R. Company v. Dale, 61 Miss. 206. "The statute imposes upon the railroad company, the fact of the injury by their cars having been established, the burden of showing the exercise of all proper skill and care upon its part."
As to this same principle we cite the case of A. and V. R. R. Company v. Thornhill, 106 Miss. 409, 63 So. 674.
As to the burden of proving what produced the injury, there is no difference when the presumption created by the prima-facie statute or the presumption raised by the doctrine of res ipsa loquitur is invoked. See Benedick v. Potts (Md.) 41 L. R. A. 478.
It is a perfectly well-settled principle, that to entitle a plaintiff to recover in an action of this kind, he must show, not only that he has sustained an injury, but that the defendant has been guilty of some negligence which produced that particular injury. In all the cases, whether the relation of carrier and passenger existed or not, the injury alone furnished no evidence of negligence. Something more was required to be shown. Pennsylvania R. Company v. MacKinney, 124 Pa. 462, 2 L. R. A. 820.
In Howser's Case, 80 Md. 146, 27 L. R. A. 154, there had been no other evidence than the mere fact of an injury, it cannot be pretended that the jury would have been allowed to speculate as to how the injury had occurred.
In the case of Ash v. Childs Dining Hall Company, 231 Mass. 86, 4 A. L. R. 1556, the court after discussing the facts of the case there under discussion stated the general principle of law in the following language:
In the case of Klein v. Beeten (Wis.), 5 A. L. R. 1237, the court announced the general principle of law, and quoted to approve the case of Musback v. Wisconsin Chair Co., 108 Wis. 69, 84 N.W. 39, as follows: "An explosion occurred, injuring plaintiff, and the question was whether the explosion occurred by reason of a defect in a gas pipe or by the negligence of a co-employee in permitting a slight flow of gasoline from a burner after it was extinguished. There was evidence showing that it might have resulted from either. The court said:
"
In the case at bar there was proof of an injury occasioned by an explosion. What it was that exploded was not shown. How it came to be in the car was not shown, and how long it had been there was not shown. It was shown clearly that whatever it was, it was some foreign substance that was no part of the equipment properly belonging to or located in the car, and at the place the explosion occurred. This proof fell far short of meeting the burden cast upon plaintiff of proving that the injury was caused by the operation of the engine and cars. The proof did not disclose the thing producing the injury so that the thing itself could speak a presumption of negligence under the res ipsa loquitur doctrine.
There was no evidence of negligence on the part of the defendant. There was no evidence of a fact from which negligence could be presumed. The peremptory instruction requested by the defendant should have been granted.
Hall & Hall, for appellee.
Under the facts, we contend that the appellee made out a case under the prima-facie statute, which is section 1645 of Hemingway's Code, and that the burden rested upon the appellant to absolve itself from all negligence with reference to the explosion. The appellant wholly failed to explain what caused the explosion, and wholly failed to show that it was without fault, because its own testimony shows that there were at least six highly dangerous torpedoes on the train which were not accounted for by it, that these torpedoes were in charge of the negro porter, one of its employees, and it did not produce this porter show what disposition he made of his torpedoes, nor to show whether any of his torpedoes were missing, nor whether he had left any of them in the smoker.
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