Potomac Edison Co. v. Johnson

• Decision Date: 05 December 1930
• Docket Number: 53.
• Parties: POTOMAC EDISON CO. ET AL. v. JOHNSON.
• Court: Maryland Court of Appeals

152 A. 633

160 Md. 33

POTOMAC EDISON CO. ET AL. v. JOHNSON.

No. 53.

Court of Appeals of Maryland

December 5, 1930

Appeal from Circuit Court, Montgomery County; Robert B. Peter Judge.

Action by Dr. James T. Johnson against the Potomac Edison Company and the Potomac Edison Company, operating the Hagerstown & Frederick Railway Company. Judgment for plaintiff, and defendants appeal.

Affirmed.

BOND C.J., and URNER and PARKE, JJ., dissenting.

Reargued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Alexander Armstrong, of Baltimore, and Leo Weinberg, of Frederick (William C. Walsh, of Cumberland, and Armstrong, Machen & Allen, of Baltimore, on the brief), for appellant.

F Brooke Whiting and Walter C. Capper, both of Cumberland (Thomas L. Dawson, of Rockville, on the brief), for appellee.

ADKINS J.

The appellant owns and operates an interurban car line between Hagerstown and Frederick, Md., known as the Hagerstown & Frederick Railway. In Frederick the track is located in the middle of Patrick street. On July 19, 1928, appellee, while driving in his automobile from Baltimore to Cumberland on Patrick street, which is a continuation of the National Pike connecting the two last-mentioned cities, saw approaching him on said street an engine and several freight cars of said company and, as there was not room to pass by reason of automobiles parked in said street, parked his car along the right-hand curb of said street to await the passing of the train. While his automobile was so parked, the last of said cars, a large freight car heavily loaded with cement, ran off the track and struck the automobile injuring appellee and his car. He sued the company and obtained a judgment against it from which this appeal was taken. In the course of the trial a number of exceptions were reserved to rulings on evidence which were not pressed. We find no reversible error in any of them. The important questions in the case are raised by the exception to the rulings on plaintiff's second, which was granted, and defendant's A prayer, which was refused, and defendant's fifth prayer which was granted in connection with plaintiff's second prayer. The reporter is requested to set out these prayers. Plaintiff's first prayer was the ordinary damage prayer and was properly granted if there was any case to be submitted to the jury; and there was no error in refusing defendant's third prayer, as it was fully covered by its fourth prayer, which was granted.

The case was ably argued on both sides, mainly on the theory that it was controlled by the determination of the questions whether or not the maxim res ipsa loquitur was applicable, and, if so, whether the defendant had so conclusively rebutted the presumption of negligence that it was entitled to a directed verdict.

In a note to the case of Kentucky Traction & Terminal Co. v. Bain (Ky.) L. R. A. 1917D, page 813 it is said, "by the weight of authority the maxim res ipsa loquitur applies to the case of one properly at a place in the street who is there injured by derailment of a street car." And in 45 C.J. p. 1286 § 853: "Where an accident is one that would not ordinarily have happened if due care and caution had been used, the mere fact of the injury is sufficient to carry the case to the jury on the question of defendant's negligence." Citing Surrey Lumber Co. v. Zissett, 150 Md. 494, 509-510, 133 A. 458; Ches. Iron Works v. Hochschield, 119 Md. 303, 311, 86 A. 345. See also Howser v. C. & P. R. R., 80 Md. 146, 30 A. 906, 27 L. R. A. 154, 45 Am. St. Rep. 332; Pindell v. Rubenstein, 139 Md. 569; Chesapeake & Potomac Tel. Co. v. Miller, 144 Md. 645, 125 A. 436; State, for use of Thompson v. Emerson & Morgan Coal Co., 150 Md. 429, 133 A. 601; Heim v. Roberts, 135 Md. 600, 109 A. 329; 2 A. L. R. Annotated, page 1614. The great weight of authority seems to be with appellant on the proposition that the burden or duty of explanation which is cast on defendant by operation of the doctrine of res ipsa loquitur where it is applicable is, not satisfactorily to account for the occurrence and to show the actual cause of the injury, but merely to rebut the inference that it had failed to use due care. 45 C.J. p. 1222, § 784; Duerr v. Consolidated Gas Co., 86 A.D. 14, 83 N.Y.S. 714; Bourguignon v. Peninsular R. Co., 40 Cal.App. 689, 181 P. 669; Carroll v. Boston Elevated Ry. Co., 200 Mass. 527, 86 N.E. 793, 797. Many other cases are cited by appellant, and our own decisions above cited are not in conflict with this view so far as regards that maxim.

It is further strenuously urged by appellant that its A prayer should have been granted on the theory that it had gone forward with evidence and exculpated itself from the inference of negligence by uncontradicted testimony, there being, it claims, no affirmative proof of negligence. This position is strongly supported by authority outside of Maryland. 45 C.J. p. 1286, §§ 853 and 857. Cases are also cited from Alabama, Arkansas, California, Florida, Georgia, Michigan, Mississippi, Missouri, Nebraska, New York, North Dakota, Oregon, Pennsylvania, Texas, Utah, and Wisconsin. There is, however, in Maryland, at least one comparatively recent case which holds that the question of exculpation is for the jury. Heim v. Roberts, 135 Md. 600, 109 A. 329. See also United Railways Co. v. Dean, 117 Md. 686, 84 A. 75; Strasburger v. Vogel, 103 Md. 89, 63 A. 202.

Besides, there is to be considered the contention of appellee that testimony offered by appellee as to an unused switch at or near the point of departure of the freight car from the track was at least some affirmative evidence of negligence which raised a question of fact to be passed on by the jury. Again it is urged by appellant that even if the question of negligence was properly left to the jury, it was prejudicial error to instruct the jury that under the doctrine of res ipsa loquitur the burden of disproving negligence was on the defendant. This question is raised by the granting of defendant's fifth prayer in connection with plaintiff's second prayer. Here again, the position of appellant finds support in the many decisions cited by appellant in its brief, of which Sweeney v. Erving, 228 U.S. 233, 244, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann. Cas. 1914D, 905, in which Mr. Justice Pitney wrote the opinion, is illustrative. It is there said:

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions."

Prayers substantially the same as plaintiff's second prayer were approved by this court in B. & O. R. R. Co. v. Worthington, 21 Md. 275, 282-283, 83 Am. Dec. 578; Green Ridge R. R. Co. v. Brinkman, 64 Md. 52, 20 A. 1024, 54 Am. Rep. 755; Baltimore & Potomac R. R. Co. v. Swann, 81 Md. 400, 409, 32 A. 175, 31 L. R. A. 313; United Ry. & Elec. Co. v. Dean, 117 Md. 686, 84 A. 75.

We do not think the prayer is in conflict with the principle contended for by appellant, or with the authorities in other jurisdictions. It does not shift the burden of proof. It says in effect that when the presumption attaches, there is cast upon the defendant the burden of meeting it by showing there was no negligence on its part. It does not say, or mean, that the weight of the evidence in that regard must be on the side of the defendant. Defendant's fifth prayer would have been misleading if it had been granted without qualification.

We have discussed somewhat at length the questions argued by counsel on both sides, but we do not think it necessary to decide them on the basis of the maxim res ipsa loquitur. We think ...