Major v. Oregon Short-Line Railroad Co.

• Decision Date: 11 December 1899
• Citation: 21 Utah 141,59 P. 522
• Court: Utah Supreme Court
• Parties: R. T. MAJOR AND NELLIE MAJOR, HUSBAND AND WIFE, APPELLANTS, v. OREGON SHORT LINE RAILROAD CO., RESPONDENT

59 P. 522

21 Utah 141

R. T. MAJOR AND NELLIE MAJOR, HUSBAND AND WIFE, APPELLANTS, v. OREGON SHORT LINE RAILROAD CO., RESPONDENT

Supreme Court of Utah

December 11, 1899

Appeal from the Second District Court, Weber County, Hon. H. H Rolapp, Judge.

Action by plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of defendant company. From a judgment for defendant, plaintiff appealed.

Affirmed.

J. D Murphy, Esq., and T. D. Johnson, Esq., for appellant.

"According to the weight of authority in this country negligence is presumed when an injury results from the breaking or defective condition of any of the appliances of a railway used in the carrying of passengers or in the method of their use."

In support of this rule we cite: Swayer v. Hannibal & C. R R. Co., 37 Mo. 240; Bowen v. N.Y. & C. Ry Co., 18 N.Y. 408; Curtis v. Rochester & C. Ry Co., 18 N.Y. 534; Ware v. Gray 11 Pick. (Mass.), 106; McLean v. Burbank, 11 Minn. 277; Phila., etc., Ry. Co. v. Anderson, 94 Pa. 351; S.C., 39 Am. Dec. 787; Brehm v. Gt. Western Ry. Co., 34 Barb. (N.Y.) 256; Sullivan v. Phila., etc., Ry. Co., 30 Pa. 234; Toledo, etc., Ry. Co. v. Beggs, 85 Ill. 80; Pittsburg, etc., Ry. Co. v. Thompson, 56 Ill. 138; Edgarton v. N.Y. & C. Ry. Co., 35 Barb. (N.Y.) 389; Caldwell v. N. J. Steamboat Co., 47 N.Y. 236; Holbrook v. Utica, etc., Ry. Co., 12 N.Y. 236; Roberts v. Johnson, 58 N.Y. 613; C. & A. Ry. Co. v. Pittsburg, 123 Ill. 9 (5 A. S. Rep. and notes); Fairchild v. Cal. Stage Co., 13 Cal. 599.

"The giving of contradictory instructions on a vital issue is ground for reversal." Bluler v. Moore, 69 N.W. 164; Brown v. McAllister, 39 Cal. 573; Mc Creery v. Everding, 44 Cal. 246; Creighton v. Evans, 53 Id., 55; Bank of S. F. v. Bliven, 53 Id., 708; Squire v. Alexander, 58 Id., 21; Harrison v. S. v. H. G. Co., 65 Id., 376.

Messrs. Williams, Van Cott & Sutherland, for respondent.

That negligence is not presumed, but on the contrary must be proved by the party alleging it, is a fundamental principle of the law of evidence, and supported by reason and authority. 1 Greenl. Ev., Sec. 8p and cases cited; 2 Redfield on Railways (6th ed.), p. 268; 1 Shearman & R. on Neg. (4th ed.), Sec. 55; 4 Elliott on Railroads, Secs. 1583 to 1587; Wharton on Neg., Sec. 421; 1 Rorer on Railroads, p. 697, and cases cited, among which is the case of Delaware, Lackawanna & W. R. v. Napheys 90 Pa. 135; S.C., 1 Am. Eng. Rd. Cases, 52.

The whole of the charge taken together is consistent, plainly and correctly stated, and the case was fairly submitted to the jury. Hamer v. Nat'l Bank, 9 Utah 218, et seq.; State v. Mc Coy, 15 Utah 141; Anderson v. Daly Mining Co., 16 Utah 38.

BARTCH, C. J. BASKIN, J., MINER, J., concurring.

OPINION

BARTCH, C. J.

This is an action to recover damages for personal injuries alleged to have been caused through the negligence of the defendant. It appears the plaintiff, Nellie Major, was a passenger on the company's train, and that the train was derailed near the town of Glens Ferry, Idaho. The car in which she was riding was upset, and she was injured. At the trial the jury returned a verdict of "no cause of action," and judgment was entered accordingly. Thereupon the plaintiffs appealed.

It is insisted on behalf of the appellants, that the court erred in charging the jury as follows: "The court instructs you that negligence is never presumed, and before you can find for the plaintiffs in this case you must find that one or more of the causes of negligence, alleged in the complaint, have been shown, by a preponderance of the testimony, to have caused the injury complained of."

Following this is a statement of the negligence alleged as the cause of action.

The specific matter objected to is the statement that "negligence is never presumed." This expression considered, standing alone, strictly in a literal sense, unconnected with anything explanatory of its intended meaning, is probably susceptible of criticism, and yet it has the sanction of authority. In 1 Rorer on Railroads, p. 697, par. 7, the author says: "It is a well-settled principle of the common law, that to recover for injuries or loss occasioned by negligence, the negligence must be alleged by the plaintiff in his pleadings, and must by him be proven. Negligence is never presumed." Here we have the identical expression, and doubtless by its use, in a personal injury case, the intention is simply to convey the idea that, in the absence of proof of some dereliction of duty, no presumption of negligence can ever arise. Proof is the foundation of the presumption. Therefore until there is proof there is no such presumption. This is based upon the familiar principle that "negligence, being a wrong, will not be presumed, but must be proved by the party charging it and seeking a recovery founded thereon." Lamb v. Camden and Amboy R. R. N & L. Co., 46 N.Y. 271; Railroad Co. v. Reeves, 77 U.S. 176, 10 Wall, 176, 271, 279, 19 L.Ed. 909.

And the mere proof that an injury was received on the train or vehicle is not sufficient to raise the presumption of negligence. It must be further shown that there was some defect in appliances, or in the manner of their use. As soon, however, as these things appear by the plaintiff's evidence, the presumption of negligence on the part of those whose duty it is to carry the passenger safely with proper appliances and due care, immediately arises, and the onus probandi immediately shifts to the defendant. This results from the improbability that the defects in machinery or appliances, or the proper use and management thereof, were of such a character that with the exercise of a degree of care and skill commensurate with the nature of the business, and the danger attending its management, they could not have been detected or foreseen. For example, in the case at bar, the mere fact that Nellie Major was injured while riding on the carrier's railroad car, was of itself no evidence of negligence on the part of the defendant, nor any presumption thereof, for she might have been injured by the throwing, for instance, of some missile through the window of the car, by some person from the outside entirely unknown to the carrier, or in some other way not at all attributable to any fault of the carrier. When, however, in addition it appeared that, at the time of the injury, the train was wrecked; that the car in which the passenger was riding toppled over; that an axle of one of the cars was broken; and that there were some decayed ties in the roadbed where the accident occurred, a presumption of negligence immediately arose, a prima facie case was made out, and the onus was at once cast upon the carrier to show that these things occurred without any dereliction of duty on its part. Therefore, when the court charged the jury that negligence was never presumed, and, at the same time, and in the same sentence, explained to them that, before they could find for the plaintiffs, they must find that one or more of the causes of negligence, alleged in the complaint, had been shown by a preponderance of the testimony, it was equivalent to charging that negligence was never presumed without proof, and that the proof, to warrant a recovery, must show the existence of the facts, set up as the cause of complaint,--of circumstances from which negligence might be inferred.

There appears to be no reason to suppose that the use of the expression objected to, as it occurs in the paragraph of the charge, misled the jury, and hence is clearly not reversible error.

This view of the law does not appear to be in conflict with the authorities cited by the appellants, as reference to some of them will show.

In Curtis v. Rochester S. R. R. Co., 18 N.Y. 534, Mr. Justice Selden, speaking for the court, said: "Whenever it appears that the accident was caused by any deficiency in the road itself, the cars, or any portion of the apparatus belonging to the company and used in connection with its business, a presumption of negligence on the part of those whose duty it was to see that everything was in order, immediately arises; it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have foreseen or discovered it;" and again he said: "In no instance, that I am aware of, has it been said by any judge, that negligence, on the part of the carrier, was to be presumed from the mere happening of an accident, except where the facts proved in the particular case fully warranted the presumption upon the principles here insisted upon."

So, in D. L. & C. R....