Riggsby v. Tritton

• Decision Date: 01 October 1925
• Citation: 129 S.E. 493
• Parties: RIGGSBY. v. TRITTON et al.
• Court: Virginia Supreme Court

129 S.E. 493

RIGGSBY.

v.TRITTON et al.

Special Court of Appeals of Virginia.

Oct. 1, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Common Carrier.]

Error to Circuit Court of City of Richmond.

Action by Helen Parrish Tritton and another against H. E. Riggsby and A. F. Franklin. Judgment for plaintiff against the defendant first named, and he brings error. Reversed and remanded.

Williams & Mullen and Guy B. Hazelgrove, all of Richmond, for plaintiff in error.

Jas. R. Sheppard, Jr., and Elsworth Wiltshire, both of Richmond, for defendants in error.

HOET, J. This is a motion for judgment for money brought by Mrs. Helen Parrish Tritton against H. E. Riggsby and A. F. Franklin.

The terms "plaintiff" and "defendants" will be used here as they were in the trial court.

In the daytime and on October 4, 1922, Mrs. Tritton was a passenger in a jitney driven by Riggsby. She was going east on Franklin street in the city of Richmond and on the south side thereof, and was struck at its intersection with Jefferson street by Franklin, who was driving a one-ton truck, and who was himself going south on that street and on the west side thereof. The injuries set out in her motion were there suffered. These streets cross each other at right angles.

Under instructions matters in issue were submitted to a jury. It returned a verdict against Riggsby alone. This verdict the court was asked to set aside as contrary to the law and evidence. Riggsby's motion was overruled and judgment entered, to which exception was duly taken. That exception and those which grew out of the giving of certain instructions are the basis of all errors assigned.

We will consider these assignments in the order followed in the petition for a writ of error.

Complaint is made of instructions I and II. They are:

"I. The court instructs the jury that a common carrier of passengers is one who undertakes for hire to carry all persons indifferently, who may apply for passage, so long as there is room and there is no legal excuse for refusing.

"II. The court instructs the jury that if you believe from the evidence that II. E. Riggsby was engaged in the business of operating a jitney from and to various points in the city over a well-defined route for hire and reward, that he offered his services in this respect to all alike without discrimination or distinction, then the said H. E. Riggsby was a common carrier."

Both of these instructions were proper. They state the law correctly and are amply supported by the evidence. Berry on Automobiles, § 1514, and Schott v. Weiss, 92 N. J. Law, 494, 106 A. 192.

Instruction 11 1/2 is:

"If the jury believe from the evidence that the defendant H. E. Riggsby was a common carrier of passengers, and that the plaintiff, on the occasion in question, was his passenger, then the court instructs the jury that H. E. Riggsby owed the plaintiff the utmost care, diligence and foresight in the operation and management of his jitney; and, if they believe from the evidence that the said Riggsby was guilty of the slightest negligence, whereby the plaintiff was injured without negligence on her part, they shall find for the plaintiff."

We see nothing wrong with this.

The third instruction is:

"If the jury believe from the evidence that H. E. Riggsby was a common carrier of passengers, and that the plaintiff was his passenger, and that while such passenger the plaintiff was injured as a result of a collision between the jitney and the automobile of the defendant Franklin, then the court instructs the jury that there is a prima facie presumption that the accident and injury occurred by reason of the negligence of H. E. Riggsby and the burden of proof is upon Riggsby to rebut such presumption; that is to say, the burden is upon him to show that he was without negligence in the collision."

Petitioner claims that this instruction is erroneous and goes to the heart of the case.

It, and the application of those principles upon which it is based, must be considered in some detail.

This brings to our consideration the doctrine of res ipsa loquitur, on which, as judge Burks has observed, much ink has been shed.

The following are authoritative and satisfactory statements of those general principles out of which this presumption grew.

In Scott v. London St. K. Docks Co., 3 H. & C. 596, Erle, C. J., observed that in order for it to apply "there must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Shearman & Redfield on Negligence, § 59, state that:

"When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. So, also: 'Where it is shown that the accident is such that its real cause may be the negligence of the defendant, and that, whether it is so or not, is within the knowledge of the defendant, the plaintiff may give the required evidence of negligence, without himself explaining the real cause of the accident, by proving the circumstances, and thus raising a presumption that, if the defendant does not choose to give the explanation, the real cause was negligence on the part of the defendant.' "

Wigmore on Evidence, § 2509, concludes his discussion of this subject with these observations:

"What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected, unless from a careless construction, inspection, or user; (2) both inspection and user must have been at the time of the injury in the control of the party charged; (3) the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged, the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him, but inaccessible to the injured person."

From the decided cases, it appears that the weight of authority favors the application of this doctrine as contended for by the plaintiff. They are collected in a note to 29 L. R. A. (N. S.) 812. This law took form in the main when traffic conditions were different and before automobiles came into universal use.

The reasoning on some of them is that accidents of this kind do not usually happen when proper care is exercised. See Housel v. Pacific Electric R. Co., 167 Cal. 245, 139 P. 73, 51 L. R. A. (N. S.) 1105, Ann. Cas. 1915C, 665; and Hodge v. Sycamore Coal Co., 82 W. Va. 106, 95 S. E. 808. The majority, however, rest upon the broad proposition that when one has shown that he was a passenger and was injured while being carried as such, that in itself is sufficient, he, by virtue of the accident and without recourse to evidence, has made out a prima facie case against the common carrier. In such circumstances, the doctrine of res ipsa loquitur applies. Price v. Metropolitan R. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588, and Sewall v. Detroit United R. Co., 158 Mich. 407, 123 N. W. 2.

Neither theory has been unqualifiedly adopted in Virginia. It has always been necessary that we look to the nature and quality of the accident. Those cases which sustain the presumption do so, not because there was an accident, but because of its character.

The first proposition involves the doctrine of probabilities, and is based upon the common experience of men. It may have been, and doubtless was, sound reasoning when first evolved, but it does not apply to road conditions which obtain to-day for it has come to pass that hazards of the highways distance perils of the great deep, that care is little protection against the reckless, and accidents continue to occur with increasing frequency. This as a practical proposition has come to be so generally recognized that casualty companies regard it as a major danger and charge accordingly for insuring against it. As a result of common experience, we have come to recognize the fact that the most prudent of drivers is in constant danger, and to recognize the further fact that negligence on the part of no particular driver can be predicated on a collision in the absence of evidence.

The accident in itself raises no presumption.

This phase of this question was considered in Roanoke Ry. Co. v. Sterrett, 108 Va. 533, 62 S. E. 385, 128 Am. St. Rep. 971, 19 L. R. A. (N. S.) 316, where the court said:

"The presumption of negligence suggested does not arise from the abstract fact of an accident to a passenger, but arises from a consideration of the nature and quality of the accident; and it must appear that it was such an accident as does not, in the usual course of things, happen to passengers when due care is exercised on the part of the carrier. 3 Thompson on Neg. § 3484; Richmond By. & Elec. Co. v. Hudgins, 100 Va. 409, 41 S. E. 736."

In Murphy's Hotel v. Cuddy's Adm'r, 124 Va. 207, 97 S. E. 794, the court said:

"It is also well settled law, that 'if an injury to a passenger is caused by an apparatus wholly under the control of the carrier and furnished and applied by it, * * * and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of the plaintiff and raises a presumption of...