Howser v. Cumberland & P.R. Co.

• Decision Date: 18 December 1894
• Citation: 30 A. 906,80 Md. 146
• Parties: HOWSER v. CUMBERLAND & P. R. CO.
• Court: Maryland Court of Appeals

30 A. 906

80 Md. 146

HOWSER v. CUMBERLAND & P. R. CO.

Court of Appeals of Maryland

December 18, 1894

Appeal from circuit court, Washington county.

Action by Solomon Howser against the Cumberland & Pennsylvania Railroad Company for personal injuries. There was a judgment for defendant, and plaintiff appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, PAGE BOYD, and ROBERTS, JJ.

J. W S. Cochrane and F. F. McComas, for appellant.

Rob. H Gordon and Hy. Kyd. Douglas, for appellee.

ROBERTS J.

This appeal brings before us for consideration a single question yet one of interest and some importance, the determination of which is not entirely free of difficulty. In the fall of 1892, while the plaintiff was passing from the place of his employment to his home, he walked over a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for 20 years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way. As the plaintiff proceeded on his way to his house, the defendant's train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties. When the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car, and about a half dozen fell upon him, and broke one of his legs in two places and otherwise injured him. In his testimony he says, "He supposed there was a jar on the track." The case was tried before a jury, the court, at the instance of the appellee, instructing them "that upon the pleadings in the cause and the evidence given to the jury the plaintiff was not entitled to recovery." If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.

While the general rule undoubtedly is that the burden of proof that the injury resulted from negligence on the part of the defendant is upon the plaintiff, yet in some cases "the very nature of the action may of itself, and through the presumption it carries, supply the requisite proof." Whart. Neg. par. 421. Thus, when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution, which it readily could and should have done, and in the absence of satisfactory explanation on the part of the appellee, a presumption of negligence arises against it. In the case of Byrne v. Boadle, 2 Hurl. & C. 722, the plaintiff was walking in a public street past the defendant's shop, where a barrel of flour fell upon him from a window above the shop, and seriously injured him. The court held that these facts constituted sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence. Pollock, C. B., said: "There are many accidents from which no presumption of negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence." Shortly after this decision a similar case, that of Scott v. Dock Co., 3 Hurl. & C. 596, was decided in the exchequer chamber. The plaintiff proved in this case that, while in the discharge of his duties as a customs officer, he was passing in front of a warehouse in the dock, and was felled to the ground by six bags of sugar falling upon him. The court said: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." Then followed the leading case of Kearney v. Railway Co., L. R. 5 Q. B. 411. This case underwent great discussion, with a view to the settlement of the true principle governing it. The facts were that the plaintiff was passing on a highway under a railway bridge, when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron-girder bridge, resting on iron piers on one side, and on a perpendicular brick wall with pilasters on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a nonsuit on the ground that there was no evidence of negligence to leave to the jury. The court of queen's bench, by a divided vote, held that this was a case to which the maxim, "Res ipsa loquitur," was applicable; or, in other words, that there was prima facie evidence of negligence. Kelly, C. B., delivering the opinion on the appeal, said: "We are all agreed that the judgment of the queen's bench must be affirmed. * * * The question, therefore, is whether there was any evidence of negligence on the part of the defendants; and by that we all understand such an amount of evidence as to fairly and reasonably support the finding of the jury. The lord chief justice, in his judgment in the court below, said, 'Res ipsa loquitur,' and I cannot do better than to refer to that judgment. It appears, without contradiction, that a brick fell out of the pier of the bridge, without any assignable cause, except the slight vibration caused by a passing train. This, we think, is not only evidence, but conclusive evidence, that it was loose; for otherwise so slight a vibration could not have struck it out of its place. No doubt it is humanly possible that the percussion of the iron girder, arising from expansion and contraction, might have gradually shaken out the mortar, and so loosened the brick; but this is merely conjecture. The bridge had been built two or three years, and it was the duty of the defendants, from time to time, to inspect the bridge, and ascertain that the brickwork was in good order, and all the bricks well secured. If there were necessity for other evidence, the case is made still stronger by the evidence of the plaintiff, which was uncontradicted on the part of the defendants, that after the accident, on fitting the brick to its place, several other bricks were found to have fallen out." And again, in the case of Briggs v. Oliver, 4 Hurl. & C. 403, the plaintiff, going to a doorway of a house in which the defendant had offices, was pushed out of the way by his servant, who was watching a packing case belonging to his master, and was leaning against the wall of the house. The plaintiff fell, and the packing case fell on his foot, and injured him. There was no evidence as to who placed the packing case against the wall, or who caused its fall. The court held that there was a prima facie case against the defendant to go to the jury.

We have made full reference to the foregoing cases as showing the views of the English courts upon this question. These and many other English and American cases clearly establish the fact that it is not requisite that the plaintiff's proof in actions of this kind, should negative all possible circumstances which would excuse the defendant, but it is sufficient if it negatives all probable circumstances which would have this effect. Thomp. Neg. 1229. It is also well settled that the cause of accident must be connected with the defendant either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent. Higgs v. Maynard, 12 Jur. (N. S.) 705; Welfare v. Railway Co., L. R. 4 Q. B. 693; Smith v. Railway Co., L. R. 2 C. P. 10. When, however, there is no duty upon the plaintiff, as under the facts of this case, or when the duty which he has to perform has been performed by him, it is clear that the negligence of the plaintiff is out of the question; and, if the accident is connected with the defendant, the question whether the phrase, "Res ipsa loquitur," applies or not, becomes a question of common sense. Whittaker's Smith, Neg. 422. The American cases sustaining the maxim, "Res ipsa loquitur," are numerous and to the point. In the case of Cummings v. Furnace Co., 60 Wis. 603, 18 N.W. 742, and 20 N.W. 665, when the defendant company was engaged in unloading iron ore from a vessel by means of a crane to which was attached a bucket, while so engaged the bucket tipped, and threw its contents upon a seaman lawfully working upon the deck of the vessel. The court said: "The accident itself was of such a character as to raise a presumption of negligence, either in the character of the machinery used or in the care with which it was hauled; and, as the jury found the fault was not with the machinery, it follows that it must have been in the hauling; otherwise there is no rational cause shown for its happening." The leading American case, however, appears to be Mullen v. St. John, 57 N.Y. 567. The opinion of the court was delivered by Dwight, C., and is a most able and exhaustive examination of the subject. He cites with approval many of the English and American cases to which reference is made in this opinion. The case was one in which the walls of a building, without any...