Marceau v. Rutland R. Co.

• Citation: 105 N.E. 206,211 N.Y. 203
• Parties: MARCEAU v. RUTLAND R. CO.
• Decision Date: 28 April 1914
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 203

105 N.E. 206

MARCEAU

v.RUTLAND R. CO.

Court of Appeals of New York.

April 28, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Arthur G. Marceau against the Rutland Railroad Company. From the Judgment of the Appellate Division (153 App. Div. 931,138 N. Y. Supp. 1128), affirming the judgment of the trial term, entered on a verdict for plaintiff, and the order denying a motion for new trial (74 Misc. Rep. 635,134 N. Y. Supp. 594), defendant appeals. Affirmed.John M. Cantwell, of Malone, for appellant.

B. W. Berry, of New York City, for respondent.

WERNER, J.

[1][2][3] The question presented by this appeal is whether the case is one in which it is proper to apply the maxim res ipsa loquitur. The plaintiff was a fireman employed by the defendant on one of its locomotives on the 25th of March, 1911, when he was injured by a sudden expulsion of steam and hot water from the boiler into the fire box and thence into the cab where he was stationed in the performance of his duty. The learned trial justice held that the maxim was applicable, and he so instructed the jury. To this charge the counsel for the defendant interposed an exception. The plaintiff was given a verdict, and the judgment which followed it was affirmed at the Appellate Division by a divided vote, two of the Justices dissenting on the ground that the trial court erred in applying the doctrine of res ipsa loquitur. Before proceeding to a closer view of the facts to which we must apply the law, it may be well to consider the contention of defendant's counsel that the rule never applies to an injury sustained by an employe while in the service of his employer, for if that is the law, this judgment must needs be reversed without reference to the particular facts .

There seems to be a widely prevalent idea in the profession that the conventional relation of employe and employer is per se inimical to the application of the maxim res ipsa loquitur, and that the maxim is one specially designed for cases in which a traveler is injured while on a public highway, or while he is a passenger in the conveyance of a common carrier. This general impression may be due in part to its origin, for it seems at first to have been applied only to cases in which the alleged delinquent's contractual obligation to the injured person was practically that of an insurer, and in part to its subsequent extension to actions in which there was no contractual relation whatever between the injured person suing in tort and the party from whom recovery was sought. It may be fairly surmised, at any rate, that the great preponderance of these two classes of cases in the category to which the maxim has been applied has given rise to the occasional expressions in some of the text-books and decisions, indicating that its application is regarded as depending primarily upon the relation of the person injured to the defendant whom he sues; but, from whatever source this view may have sprung, the fact remains that it is not supported by the maxim itself nor by the decisions of this court .

The phrase res ipsa loquitur, literally translated, means that the thing or affair speaks for itself. It is merely a sort of way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify the conclusion that the accident was caused by negligence. The inference of negligence is deducible, not from the mere happening of the accident, but from the attendant circumstances. ‘It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.’ Shearman & Redfield on Negligence, § 59. This section was quoted with approval by Judge Cullen in writing for this court in Griffen v. Manice, 166 N. Y. 188, 193,59 N. E . 925, 926 (52 L. R. A. 922, 82 Am. St. Rep. 630), and in that connection he expressed the view that ‘the application of the principle depends on the circumstances and character of the occurrence, and not on the relation between the parties, except indirectly so far as that relation defines the measure of duty imposed on the defendant.’ He quoted also from the opinion of Judge Danforth in Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297, 300,16 N. E. 60, 61 (4 Am. St. Rep. 450), in which the author said: ‘There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.’ In the Griffen Case Judge Cullen followed this quotation from the Breen Case, with the pertinent observation that he could see no reason ‘why the rule thus declared is not applicable to all cases or why the probative force of the evidence depends on the relation of the parties. Of course the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care, and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence. But the question in every case is the same whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.’ Thus we see that this court is definitely committed to the view that the application of the maxim res ipsa loquitur depends, not upon the relation of the injured person to the person or party who is charged with causing the injury, but upon the explanatory circumstances which surround the happening of the accident. The rule thus expressed has been recognized in the recent cases of Robinson v. Consolidated Gas Co., 194 N. Y. 37, 41,86 N. E. 805,28 L. R. A. (N. S.) 586, and Hardie v. Boland Co., 205 N. Y . 336, 341,98 N. E. 661, and has been followed in many cases in the several Appellate Divisions.

While it is, therefore, the settled law that the maxim is applicable to any case where the facts warrant its application, it is apparent that the employe who invokes it against his employer encounters difficulties that do not hamper the wayfarer in a public place or the passenger in a common carrier's conveyance. The man who was lawfully upon the highway need go no farther in the first instance than to prove that he was hit by a falling wall (Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530) or by a flying missile (Wolf v. Am. Tract Soc., 164 N. Y. 30, 33, 58 N. E. 31,51 L. R. A. 241;Hogan v. Manh. Ry. Co., 149 N. Y. 23, 43 N. E. 403;Volkmar v. Manh. Ry. Co., 134 N. Y. 418, 31 N. E. 870,30 Am. St. Rep. 678), and that the thing by which he was injured came from the premises of the defendant. The passenger who was for the time under the protection of a common carrier needs only to show that the train upon which he was riding left the track (Seybolt v. N. Y., L. E. & W. R. R. Co ., 95 N. Y. 562, 565,47 Am. Rep. 75), or collided with another car or train (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 56 N. E. 988), and thus caused his injuries. The reason for the rule in such cases is not far to seek. The owner of a building or structure must exercise a high degree of care to so keep it that the wayfarer on the public streets shall not be injured by falling walls or missiles. The common carrier is under the strict duty to its passenger to keep its cars and tracks in a safe condition, and in all such cases w...