Riggsby v. Tritton

• Decision Date: 01 October 1925
• Citation: 143 Va. 903
• Parties: H. E. RIGGSBY v. HELEN PARRISH TRITTON, ET AL.
• Court: Virginia Supreme Court

Page 903

143 Va. 903

H. E. RIGGSBY v. HELEN PARRISH TRITTON, ET AL.

Supreme Court of Virginia, Richmond.

October 1, 1925.

Absent, Christian, J.

1. CARRIERS — Definition of Common Carrier. — 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.

2. CARRIERS — Common Carriers — Jitney. — One engaged in the business of operating a jitney from and to various points in a city, over a well defined route, for hire and reward, who offers his services in this respect to all alike without discrimination or distinction, is a common carrier.

3. CARRIERS — Jitneys — Diligence and Care Owed to Passengers. — A jitney driver, who is a common carrier of passengers, owes his passengers the utmost care, diligence and foresight in the operation and management of his jitney; and if he is guilty of the slightest negligence whereby his passenger is injured, without negligence on the part of his passenger, he is liable.

4. STREETS AND HIGHWAYS — Negligence — Res Ipsa Loquitur. — The doctrine of res ipsa loquitur, as applied to street and highway accidents, depends upon the nature and quality of the accident rather than upon the fact of accident. In view of the hazards of the highways, 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.

5. NEGLIGENCE — Res Ipsa Loquitur — Nature and Quality of the Accident. — The presumption of negligence, arising from an accident in which a passenger is injured, 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. $t6. NEGLIGENCE — Res Ipsa Loquitur — Application of the Doctrine — Absence of Evidence. — The rule of res ipsa loquitur is one of evidence and amounts to a prima facie presumption of fact sometimes resorted to by the court in the absence of evidence. It is a rule of necessity, to be invoked only when necessary evidence is absent and not readily available. On the other hand, it is not to be invoked when the evidence is in fact available and, a fortiori, not when it is actually presented. In such circumstances the case goes to the jury unhampered by any presumption at all.

7. NEGLIGENCE — Res Ipsa Loquitur — Burden of Proof. — While the burden is always upon the plaintiff to establish his right to recover by the preponderance of evidence, in cases where the causes of the accident are peculiarly within the knowledge of the defendant, proof of the happening of the accident (such as a derailment) establishes a prima facie case which calls for rebuttal and explanation on the part of the defendant. The plaintiff by proving the accident has reasonable evidence on which the jurors may, if they think fit, find a verdict for him.

8. NEGLIGENCE — Res Ipsa Loquitur — Peculiar Knowledge of Defendant — Case at Bar. — In the instant case, an action for injuries to a jitney passenger arising out of a collision between the jitney and a truck, there was no knowledge peculiarly in the breast of defendant, the driver of the jitney, and there was no evidence not readily accessible to the plaintiff. The necessity for presumptions therefor, or for secondary evidence, did not arise at all. There was nothing in the nature or quality of the accident to call for them, and the doctrine of res ipsa loquitur had no application. Where the cause of the accident is explained, the doctrine does not apply.

9. NEGLIGENCE — Res Ipsa Loquitur — Injury to a Jitney Passenger from Collision with Another Car — Instructions. — In an action by a jitney passenger against the driver of the jitney, the court instructed the jury that if the driver was a common carrier of passengers, and the plaintiff while his passenger was injured as the result of a collision of the jitney and another automobile, there was a prima facie presumption that the accident and injury occurred by reason of the negligence of the defendant.

Held: Error, as the doctrine of res ipsa loquitur had no application to the particular facts in the instant action.

10. NEGLIGENCE — Res Ipsa Loquitur — Burden of Proof — Instructions. — An instruction that the burden of proof is upon the defendant carrier to rebut the presumption of negligence arising from the accident to a passenger, is erroneous.

11. NEGLIGENCE — Res Ipsa Loquitur — Presumption — Burden of Proof — Evidential — Weight of the Presumption. — The doctrine of res ipsa loquitur is evidential and the presumption is a substitute for direct testimony. The presumption can have no greater weight than the testimony for which it is a substitute. It would be manifestly improper to say to the jury, after the plaintiff had introduced a certain amount of evidence, that the burden of proof shifted to the defendant. The doctrine of res ipsa loquitur has nothing to do with the burden of proof at all. It shifts the burden of evidence but not the burden of proof.

12. PRESUMPTION AND BURDEN OF PROOF — Shifting of Burden of Proof — Burden of Producing Evidence. — If, by burden of proof, we mean the burden of producing evidence, than that burden passes from party to party frequently during the progress of a trial. But if, by burden of proof, we mean the necessity, which always rests upon a plaintiff to prove his case, then it never shifts.

13. INSTRUCTIONS — Evidence to Support Instruction — Damages — Medical Attention. — In an action by a passenger against a carrier for injuries, it was error to instruct the jury that if they found for the plaintiff they should take into consideration the necessary expenses for medicine and medical attention, where there was no evidence on which to base the instruction. The passenger was attended by a physician, but the jury was left to guess as to his charges.

Error to a judgment of the Circuit Court of the city of Richmond, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Williams & Mullen and Guy B. Hazelgrove, for the plaintiff in error.

Jas. R. Sheppard, Jr., and Elsworth Wiltshire, for the defendants in error.

HOLT, J., delivered the opinion of the court.

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 day time, 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. These streets cross each other at right angles.

1, 2 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 H. 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, section 1514, and Scott Weiss, 92 N.J.L. 404.

3 Instruction 11 1/2 is: "If the jury believe from the evidence that the defendant, H. E. Riggsby, was a common arrier 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.

4, 5 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 Burke has...