Lyon v. Chicago, M. & St. P. Ry. Co. of Montana

• Citation: 148 P. 386,50 Mont. 532
• Decision Date: 20 April 1915
• Docket Number: 3509.
• Parties: LYON v. CHICAGO, M. & ST. P. RY. CO. OF MONTANA ET AL.
• Court: Montana Supreme Court

148 P. 386

50 Mont. 532

LYON v. CHICAGO, M. & ST. P. RY. CO. OF MONTANA ET AL.

No. 3509.

Supreme Court of Montana

April 20, 1915

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by Ella F. Lyon against the Chicago, Milwaukee & St. Paul Railway Company of Montana and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Walsh Nolan & Scallon, of Helena, and D. M. Durfee, of Philipsburg for appellant.

Geo. W Korte, of Seattle, Wash., and Wingfield L. Brown, of Philipsburg, for respondents.

HOLLOWAY J.

This cause was before this court on a former appeal (Lyon v. Chicago, M. & St. P. Ry. Co. et al., 45 Mont. 33, 121 P. 886). Upon the second trial the defendants prevailed; and plaintiff has appealed from the adverse judgment. A somewhat extended statement precedes our former opinion, and only such facts will be restated as are necessary to illustrate the single question now presented. The line of the railway company's road through Hellgate Canyon was constructed along the river. At a particular bend in the river near Drummond earth, rock, and gravel were taken from the right of way for making grades and fills, with the result that a barrow pit, deeper than the river channel, was excavated, leaving a portion of the natural surface of the earth between the pit and the river for an embankment or berme. In June, 1908, this embankment or berme was washed away. Large quantities of débris were carried upon plaintiff's land, and the river itself cut a new channel through her property, causing the damage for which redress was sought in this action. The defendants were charged with negligence in excavating the barrow pit to a point so near the river that the embankment remaining was insufficient in thickness and strength to retain the waters of the river within its natural channel, and because of this negligence the embankment gave way, with the resulting injury to plaintiff's property. The defendants denied any negligence on their part, and pleaded that the embankment was destroyed by an unprecedented flood or an act of God, and that the débris was carried to and upon plaintiff's land by the waters of the river flowing through a slough and certain ditches which plaintiff maintained as a part of her irrigating system. Upon the trial the court submitted instruction No. 14, to which plaintiff objected, upon the ground that:

"Under the facts in this case, the going out of the berme or embankment made out a prima facie case of negligence against the defendants, and the burden was upon them to show that they exercised ordinary care and prudence in leaving the embankment as they did."

The same objection was made to instruction No. 15, but is not applicable at all, and that instruction is dismissed from further consideration. The objection to instruction 14 raises the only question which appellant has presented for determination.

If by the objection made counsel meant to urge that the burden of proof shifted to defendants, they were in error. Upon the issue of defendants' negligence plaintiff had the affirmative, and every rule of law and logic imposes upon her the burden of proving that negligence as alleged by a preponderance of the evidence. Rev. Codes, § 7972; Kipp v. Silverman, 25 Mont. 296, 64 P. 884; Gallick v. Bordeaux, 31 Mont. 328, 78 P. 583; Woods v. Latta, 35 Mont. 9, 88 P. 402. There is not any instance where from the bare fact that an injury occurs an inference of negligence can be drawn. Benedick v. Potts, 88 Md. 52, 40 A. 1067, 41 L. R. A. 478. We assume, however, that counsel meant no more than that the embankment gave way under such circumstances as pointed clearly to defendants' negligence as the cause, and called for them to go forward with the proof in explanation of their connection with it.

The rule res ipsa loquitur invoked by appellant, when properly applied, operates to make out a prima facie case, but goes no further. Hardesty v. Largey Lumber Co., 34 Mont 151, 86 P. 29; 8 Thompson's Com. on the Law of Negligence, § 3635; 1 Elliott on Evidence, § 91. It has the force and effect of a disputable presumption of law, and supplies the place of proof necessarily wanting. Spaulding v. Chicago & N.W. Ry. Co., 33 Wis. 582; Beeman v. Puget Sound Traction Co., 79 Wash. 137, 139 P. 1087. The maxim applies in negligence cases upon the theory that ...