Page v. Camp Mfg. Co.

• Decision Date: 10 November 1920
• Docket Number: 222.
• Parties: PAGE v. CAMP MFG. CO.
• Court: North Carolina Supreme Court

104 S.E. 667

180 N.C. 330

PAGE v. CAMP MFG. CO.

No. 222.

Supreme Court of North Carolina

November 10, 1920

Appeal from Superior Court, Duplin County; Kerr, Judge.

Action by C. B. Page against the Camp Manufacturing Company. Judgment for plaintiff, and defendant appeals. New trial.

The rule of res ipsa loquitur merely authorizes the jury to infer negligence upon the facts shown, and does not require such inference or shift the burden of proving the facts by preponderance of the evidence to defendant, so that, in an action for damages caused by fire an instruction which imposed on defendant the burden of satisfying the jury by a preponderance of the evidence that it was not negligent after the plaintiff had made a prima facie case was erroneous.

Stevens & Beasley, of Warsaw, for appellant.

George R. Ward, of Wallace, and Ward & Ward, of New Bern, for appellee.

WALKER J.

Action for injuries to land caused by the negligent burning of the timber thereon. The fire, plaintiff alleged, originated from sparks emitted from one of defendant's engines, which had a defective smokestack and spark arrester. It is the same fire and same engine that caused the injuries, for which the plaintiff in Williams v. Camp Mfg. Co., 177 N.C 512, 99 S.E. 370, recovered a judgment for damages, which was affirmed by this court, as will appear from the reported case, supra, and after a careful study and comparison of the two cases we have been unable to discover any substantial difference, in respect of the facts, between them. Mr Stevens argued the case for the defendant very ably, and contended that there was some difference in the facts of the two cases, but our investigation has irresistibly led us to the opposite conclusion, and we find no such difference in the essential facts. The same principles which applied there are also applicable to this case, but there is an error in the charge of the court which prejudiced the defendant.

There was evidence that defendant's engine sent out the sparks which started the conflagration, and thereby damaged plaintiff's timber and lands. It was not very strong or conclusive in its nature or its force, but rather inconclusive, and yet we cannot say there was no evidence of the fact in issue. The remedy for the false verdict, if it was false, was an application to the judge for relief by setting aside the verdict, as being against the clear preponderance of the testimony, and we presume this course was taken, and failed to have the desired effect. While the evidence presented a strong case for the exercise of the power which resides in the judge, we cannot review the ruling, by which he refused to disturb the verdict on this ground. It must therefore stand, unless there be reversible error in law, and we think there was such error.

Instead of charging the jury that when plaintiff made out a prima facie case, it was incumbent upon defendant to go forward with its evidence or take the risk of an adverse verdict, the court placed the burden upon the defendant to satisfy the jury by a preponderence of the evidence that it was not negligent. This was stating the principle of law much too strongly, and no doubt may have caused the jury to miscarry in their verdict upon the facts. We have repeatedly stated the true rule as formulated by this and other courts. The present Chief Justice expressed it very clearly and tersely in Shepard v. Telegraph Co., 143 N.C. 244, 55 S.E 704, 118 Am. St. Rep. 796, where he held that, though plaintiff has shown a prima facie case of negligence, it may be rebutted, but it is not necessary that the rebutting evidence of the defendant should preponderate, as the burden remains with the plaintiff throughout the case to establish negligence. He makes an apt quotation from 1 Elliott on Ev. § 137, which we approved, as follows:

"The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden, or duty, of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is in turn compelled to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor's case by a preponderance of the evidence, for the actor must fail if, upon the whole evidence, he does not have a preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced." And the Chief Justice then likens the principle to that prevailing in criminal cases by this very clear illustration. We quote his language:

"The burden of the issue as to the guilt of the prisoner, except where the law raises a presumption of law as distinguished from a presumption of fact, remains on the state throughout, and when evidence is offered [by defendant] to rebut the presumption of fact raised by the evidence [of the state], the burden is still on the state to satisfy the jury of the guilt of the prisoner upon the whole evidence. Notably, when the prisoner offers proof of an alibi, for example, which goes to the proof of the act. State v. Josey, 64 N.C. 56."

He also says in that case, that--

"The burden of the issue as to negligence was upon the plaintiff. If no evidence had been offered in rebuttal, the court might have told the jury that if they believed the evidence, to answer the issue Yes. But when evidence was offered in rebuttal it was not incumbent upon the defendant to [dis]prove [[plaintiff's case] by a preponderance of testimony, but upon all the testimony it was the duty of the plaintiff to satisfy the jury by a preponderance of the evidence that the defendant was guilty of negligence. This has been recently discussed," citing Board of Education v. Makely, 139 N.C. 35, 51 S.E. 784.

This would seem to be entirely sufficient to show the error of the learned judge in his charge, but the question has formerly been considered by this court in Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562 (the Elevator Case), which has been approved and quoted from in Sweeney v Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905, to this effect: There was much discussion by counsel of the doctrine of res ipsa loquitur and its relevancy to the facts of this case. "The thing speaks for itself" is a principle applied by the law, where under the circumstances shown the accident presumably would not have occurred in the use of a machine if due care had been exercised, or, in the case of an elevator, when in its normal operation after due inspection. The doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury, which requires the defendant "to go forward with his proof." "The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator attributable to the defendant's negligence. The law attaches no special weight, as proof, to the fact of an accident, but simply holds it to be sufficient for the consideration of the jury, even in the absence of any additional evidence." Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; 2 Labatt on Master and Servant, § 834; 4 Wigmore on Evidence, § 2509. In all other respects the parties stand before the jury...