Johnson v. Herring
| Decision Date | 08 April 1931 |
| Docket Number | 6740. |
| Citation | 300 P. 535,89 Mont. 420 |
| Parties | JOHNSON v. HERRING et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by William Johnson against Ed. Herring and another. From a judgment of nonsuit, plaintiff appeals.
Reversed and remanded.
C. F Holt, of Great Falls, and Lester H. Loble and Hugh R. Adair both of Helena, for appellant.
Clift & Glover, of Great Falls, for respondents.
William Johnson brought action against Ed. Herring and the Great Falls Ice & Fuel Company, a corporation, to recover damages for the death of his son, aged six years and four months alleged to have resulted from his negligent operation of a truck owned by the company and driven by Herring. Issue was joined and, in due time, the case came on for trial. The plaintiff introduced all of his testimony and rested whereupon defendants moved for judgment of nonsuit, which motion was sustained and judgment entered. From this judgment plaintiff has appealed. The only question presented by this appeal is whether or not, on the record as made, the trial court was justified in taking the case from the jury.
There was no eyewitness to the accident resulting in the death of the boy, Frank Johnson, and but one witness to what occurred immediately preceding it. In support of the judgment counsel for defendants assert that there was no proof of negligence of the defendants, as the proximate cause of the accident, but only proof that an accident did happen and that this fact alone would not warrant the submission of the case to a jury, as the doctrine of res ipsa loquitur does not apply. Granting the premise on which it is based, we agree with the conclusion for which counsel contend.
The mere fact that a motor-driven vehicle comes in contact with a pedestrian, to the injury of the latter, raises no presumption of negligence on the part of the driver of the vehicle; in such a case the right to recover damages for the injury inflicted on the pedestrian depends upon proof of the allegation, necessary in the complaint, that the driver of the vehicle was guilty of negligence proximately causing the injury. McAvoy v. Kromer, 277 Pa. 196, 120 A. 762; Blazic v. Franzwa, 179 Wis. 260, 191 N.W. 572. Nor does the fact that the injured person was a child of tender years, and the driver a man, shift the burden of proof as to the proximate cause of the accident (Frank v. Free, 190 Mo.App. 73, 175 S.W. 217), although the age of the child may bar the defense of contributory negligence.
The doctrine of res ipsa loquitur is not, as sometimes assumed, an exception to the rule that in personal injury cases the plaintiff must prove actionable negligence. Negligence may be proved by circumstantial evidence, and where the circumstances proved are such as to point by fair and reasonable inference to the conclusion that the defendant was guilty of negligence, they are sufficient to take the case out of the realm of conjecture and into the field of legitimate inference and to support a finding by the jury that the defendant was guilty of negligence. Thress v. Hackler (Va. 1930), 154 S.E. 502. The phrase "res ipsa loquitur," literally interpreted, "the thing speaks for itself," does not mean that proof of the accident alone warrants recovery in cases to which the doctrine is applicable, but is merely a short way of saying that the circumstances attendant upon the accident are, of themselves, of such a character as to justify a jury in inferring negligence as the proximate cause of the accident. Benedick v. Potts, 88 Md. 52, 40 A. 1067, 41 L. R. A. 478; Cohen v. Farmers' Loan & Trust Co., 70 Misc. 551, 127 N.Y.S. 561, 564; Sand Springs Park v. Schrader, 82 Okl. 244, 198 P. 983, 22 A. L. R. 593; Rost v. Roberts, 180 Wis. 207, 192 N.W. 38. Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925, 926, 52 L. R. A. 922, 82 Am. St. Rep. 630.
These declarations are in harmony with those of this court on the subject. The doctrine applies where the defendant is in the management and control of the instrumentality which causes the injury or accident and the attendant circumstances are such as to raise a presumption that the accident would not have occurred had the defendant used reasonable care ( McGoWan v. Nelson, 36 Mont. 76, 92 P. 40; Hardesty v. Largey Lumber Co., 34 Mont. 167, 86 P. 29), and is applied "upon the theory that the plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, but that the defendant, having its exclusive management and control, and being thus more favorably situated, possesses the knowledge of the cause of the accident, and should, therefore, be required to produce the evidence in explanation." When properly applied, it "operates to make out a prima facie case, but goes no further." Lyon v. Chicago, etc., Ry. Co., 50 Mont. 532, 148 P. 386, 388.
"While negligence may be proved by indirect or circumstantial evidence, the circumstances, if any thus proved, must not only tend to prove negligence, and that such negligence was a proximate cause of the injury, but they must equally tend to exclude any other reasonable conclusions." Norton v. Great Northern Ry. Co., 85 Mont. 270, 278 P. 521, 528.
However, the rule of absolute exclusion, prevailing in criminal cases, does not apply to civil actions, and it is sufficient to make out a prima facie case if the plaintiff can show that the injury is more naturally attributed to the negligence alleged than to any other cause which the evidence might also tend to establish (Andree v. Anaconda C. Min. Co., 47 Mont. 554, 133 P. 1090; Freeman v. Chicago, etc., Ry. Co., 52 Mont. 1, 154 P. 912), and no case should ever be withdrawn from the jury, declared by statute to be the sole judges of the facts, unless the evidence is susceptible of but one construction by reasonable men, and that in favor of defendant, or where the evidence is in such condition that, if the jury were to return a verdict in favor of the plaintiff, it would become the duty of the court to set it aside. Black v. Martin, 88 Mont. 256, 292 P. 577; McKeon v. Kilduff, 85 Mont. 562, 281 P. 345.
On a motion for nonsuit every fact is deemed to be proved which the evidence tends to establish, and the evidence is to be viewed in the light most favorable to the plaintiff, and if, so viewing the evidence, a prima facie case is made out, it follows that the trial court erred in granting the nonsuit. Nonsuit should never be granted unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, "including the legitimate inferences to be drawn from it." Morelli v. Twohy Bros. Co., 54 Mont. 366, 170 P. 757.
With these rules firmly in mind we will analyze the testimony before the trial court at the time the nonsuit was granted.
Frank Johnson, aged six years and four months, was fatally injured on July 11, 1928, at approximately 4 p. m. The day was clear, bright, and hot. The scene of the accident was about midway between two streets in Great Falls, in a public alley east and west. The alley was straight, level, free from any obstruction to view or passage, and twenty feet wide. At or near its center the alley was bounded on the south by the rear fences of the Johnson property and neighboring homes, and on the north by two vacant lots of fifty feet each, on which children played, traveling and crossing the alley from their homes for this and other purposes. At the scene of the accident bridge timbers were piled to a height of sixteen inches parallel with, and about a foot from, the north line of the alley and on the vacant lots.
Just prior to the accident the defendant Herring drove into the alley from the west and stopped to make a delivery of ice. Children, seen by the driver, gathered at his truck for the purpose of securing ice, but "scattered" on his return from making the delivery. Of these children, Frankie...
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