Saunders v. Norfolk & W. Ry. Co.

• Decision Date: 11 April 1923
• Docket Number: 330.
• Citation: 117 S.E. 4
• Parties: 185 N.C. 289, 29 A.L.R. 1258 v. NORFOLK & W. RY. CO. SAUNDERS
• Court: North Carolina Supreme Court

117 S.E. 4

185 N.C. 289, 29 A.L.R. 1258

SAUNDERS v. NORFOLK & W. RY. CO.

No. 330.

Supreme Court of North Carolina

April 11, 1923

Appeal from Superior Court, Durham County; Connor, Judge.

Action by Lucy Saunders against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.

Where passenger entered coach and took vacant seat by window that was then open, and placed her arm on the window sill, and after the train had gone about eight miles the window fell upon the arm and injured it, the rule of res ipsa loquitur did not apply, and the passenger should have been nonsuited though she testified she neither touched the window nor did anything else to cause it to fall.

The plaintiff was injured while a passenger on the defendant's train en route from Roxboro to Durham. After entering the coach she took a vacant seat by a window that was then open, and placed her arm on the window sill. Just before the train reached Helena, which was eight miles from Roxboro, the window fell on her arm and injured it.

At the trial the plaintiff testified that she neither touched the window nor did anything else to cause it to fall, but she offered no evidence that the window or its catches were defective, or that the window had been raised by any of the defendant's employees. The day was warm, and nearly all the windows were open. There was no direct evidence of any defect or any act which caused the window to fall; but the trial judge instructed the jury as follows:

"I instruct you that the fact that a window in a railroad car when properly secured after having been raised will not ordinarily fall, and the fact that this window did fall, is evidence to be submitted to you and to be considered by you in determining why the window fell. The very fact that the window fell when properly secured, either by properly adjusted fasteners, or it being raised to a proper distance it would not have fallen, coupled with the fact that the window in this instance did fall, if you find it fell, is evidence to be submitted to the jury, and it is for the jury to say whether or not the falling of the window was due to some default or failure on the part of the defendant to perform its duty, with respect to this window, to a passenger."

At the close of the plaintiff's evidence and at the conclusion of all the evidence the defendant entered of record its motion to dismiss the action as in case of nonsuit. Each motion was denied. Upon the verdict judgment was rendered for the plaintiff, and the defendant appealed.

F. M Rivinus, of Philadelphia, Pa., and W. B. Guthrie, of Durham, for appellant.

R. H. Sykes and S. C. Brawley, both of Durham, for appellee.

ADAMS J.

In considering this appeal we observe an utter want of any direct proof that the window or either of its bolts or safety catches was defective, or that it was raised by an employee of the defendant. Neither the height to which the sash was raised nor the condition of the catches nor whether the raised sash was secured by the catches is ascertained. So there is no definite evidence as to what caused the window to fall, and no evidence of negligence except the bare fact that it fell. The plaintiff, therefore, seeks to maintain her action by applying to the evidence the rule res ipsa loquitur. The rule is clearly stated in Scott v. The London Docks Co., 159 Eng. Rep. 665:

"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 defendant, that the accident arose from want of care."

But it is essential to show that the appliance, machinery, device or other agency causing the injury is under the management of the defendant or his servants; and in applying the rule in actions against common carriers the courts are generally agreed that, when a passenger is injured by machinery and appliances wholly under the carrier's control, this fact is sufficient prima facie to show negligence. 20 R. C. L. 188, § 157, and cases cited. Wigmore says that one of the considerations limiting the rule is that both inspection and user must have been, at the time of the injury, under the control of the party charged. Wigmore on Evidence, § 2509. In this respect the decisions of this court cited in the plaintiff's brief may be differentiated from the case at bar. In all of them "the thing" was under the management or control of the defendant, and not of the plaintiff; as, for example, a mail bag defectively hung or secured (McCord v. Railroad, 134 N.C. 53, 45 S.E. 1031), the fall of an elevator (Womble v. Gro. Co., 135 N.C. 474, 47 S.E. 493; Stewart v. Carpet Co., 138 N.C. 61, 50 S.E. 562), defective machinery in a cotton mill (Ross v. Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L. R. A. [ N. S.] 298), negligence in unloading a car of coal (Fitzgerald v. Railroad, 141 N.C. 531, 54 S.E. 391, 6 L. R. A. [ N. S.] 337), the defective roof of a coach (Ridge v. Railroad, 167 N.C. 510, 83 S.E. 762, L. R. A. 1917E, 215), a loose bolt in the aisle of a coach (Lindsey v. Railroad, 173 N.C. 391, 92 S.E. 166), fire escaping from a smokestack (Matthis v. Johnson, 180 N.C. 130, 104 S.E. 366), the explosion of gasoline stored in the defendant's warehouse (Newton v. Texas...