Simpson v. Gray Line Co.

• Decision Date: 05 January 1961
• Citation: 226 Or. 71,358 P.2d 516
• Parties: Manda SIMPSON, Appellant, v. GRAY LINE COMPANY, a Corporation, Respondent.
• Court: Oregon Supreme Court

Page 516

358 P.2d 516

226 Or. 71

Manda SIMPSON, Appellant, v. GRAY LINE COMPANY, a Corporation, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 30, 1960.

Decided Jan. 5, 1961.

Joe P. Price, Portland, argued the cause for appellant. With him on the briefs was Tom P. Price, Portland.

Nicholas Zumas, Portland, argued the cause for respondent. With him on the brief were Koerner, Young, McColloch & Dezendorf, Portland.

Before McALLISTER, C. J., and WARNER, PERRY, GOODWIN and KING, JJ.

GOODWIN, Justice.

Plaintiff appeals from a judgment following a verdict for the defendant common carrier in an action for damages for personal injuries.

Plaintiff was a fare-paying passenger on a chartered bus when the right front tire blew out. The bus overturned and plaintiff sustained physical injuries.

The principal question arises out of an instruction. The trial court, instructing on the plaintiff's theory of res ipsa loquitur, told the jury that there was an 'inference' of negligence on the part of the defendant under the facts of the case. Plaintiff contends that the court should have used the word 'presumption'. The only exception taken to the instruction was to the substitution of the word 'inference' for the requested word 'presumption'.

In cases not involving common carriers, the matter was settled in Ritchie v. Thomas et al., 190 Or. 95, 224 P.2d 543. In that case, this court held that if the doctrine of res ipsa loquitur applies, it gives rise to an inference of negligence and not to a presumption thereof. Earlier cases were discussed at length and inconsistent decisions were overruled. The opinion left open the question whether the same rule should apply to actions against common carriers.

Our statutes recognize two distinct kinds of indirect evidence: inferences and presumptions. ORS 41.310.

An inference is defined as a deduction which the reason of the jury makes from facts proved, without an express direction of law to that effect. ORS 41.320.

A presumption is defined as a deduction which the law expressly directs to be made from particular facts. ORS 41.340.

The distinction between the two is the difference between that which is permitted and that which is demanded. An inference is permissible; a presumption is required. Ritchie v. Thomas et al., supra. In the trial of any particular action the difference is important because an inference does not affect the burden of going forward with evidence, while a presumption may. See Prosser, Torts 211-214, § 43.

In the case at bar, the plaintiff proved that the tire which gave way was within the possession and control of the defendants at all material times. The tire was rented from a third party, but this fact is immaterial in determining the issue before the court. There is a duty upon the carrier to furnish tires that are fit for the intended use. Remer v. Flying Eagle Whiteway Lines, 2 Cir., 1949, 172 F.2d 831. If there were no other evidence, an inference arising out of the tire failure would have authorized the jury to find that the defendant was negligent in regard to the particular duty. A presumption, on the other hand, would have required the jury to find that the defendant was negligent. As noted above, Ritchie v. Thomas left the question open.

Before Ritchie v. Thomas was decided, Oregon decisions could be found to support a variety of approaches to the problem of applying res ipsa loquitur to carrier cases. In at least four carrier cases, the court used language suggesting that the application of res ipsa loquitur in a common-carrier case provides the plaintiff with a presumption of negligence. In none of the four was the mandatory effect of a presumption necessary to the decision, and we doubt that the court considered the effect of its choice of nomenclature. See Budd v. United Carriage Co., 25 Or. 314, 35 P. 660, 27 L.R.A. 279; Richardson v. Portland Trackless Car Co., 113 Or. 544, 233 P. 540; Coblentz v. Jaloff, 115 Or. 656, 239 P. 825, and Francisco v. Circle Tours Sightseeing Co., 125 Or. 80, 265 P. 801. Insofar as the four cases last mentioned may be understood as holding that res ipsa loquitur gives rise to a presumption, they are overruled.

As pointed out in Ritchie v. Thomas et al., supra, res ipsa loquitur is merely circumstantial evidence that a duty owed to the plaintiff may not have been performed. The difference between a case in which the defendant is a common carrier and a case against an ordinary defendant is to be found in the high degree of duty owed by the carrier to a passenger and not in any mystical powers to be drawn from the word 'presumption.'

The authorities agree that two conditions must exist before a plaintiff is entitled to an inference that the defendant was at fault. These are: (1) an instrumentality under the actual control of the defendant, or one which the defendant has the right to control and manage; and (2) an accident which probably would not have happened if some one had not failed to exercise due care. Ritchie v. Thomas et al., supra; Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183.

Liability is imposed upon a common carrier, as upon any defendant, because of a breach of some duty owed the plaintiff. In other words, before there is liability there must be fault. In applying the rule that an inference of fault arises from the happening of an accident through an instrumentality within the responsibility of the defendant under certain circumstances, the court must begin in each case with an understanding of the breach of duty the plaintiff is required to establish, either inferentially or directly.

The inference of a failure to perform a duty owed the plaintiff in the case at bar involves the use of circumstantial evidence to permit the jury to find that the defendant did not, prior to the accident, use that degree of care in its inspection, maintenance, record-keeping, and operation of its passenger equipment that the law requires of it. The inference of such want of care does not, and should not, shift the ultimate burden of proof. The inference is merely circumstantial evidence, available to the plaintiff, to be given such weight as the jury deems proper.

The jury was correctly instructed in the case at bar that a common carrier owes its passengers the highest degree of care and skill practicable for it to exercise. Prosser, Torts 147, § 33; Richardson v. Portland Trackless Car Co., supra; Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141. The court also correctly instructed the jury that the defendant-carrier could not delegate its duty to a third party, i. e., to a tire company which supplied tires on a rental agreement. Pennsylvania Co. v. Roy, supra; Prosser, Torts 359, § 64.

The defendant has questioned whether the doctrine of res ipsa loquitur should apply in case of tire failure. It has been held in actions against automobile owners who are not common carriers that mere tire failure gives rise to no inference of a breach of any particular duty. See cases collected in Annotation, 24 A.L.R.2d 161, 183. Such cases are not applicable, however, in an action against a carrier.

The...