Southern Pac. Co. v. Hanlon

• Decision Date: 18 January 1926
• Docket Number: No. 4655.,4655.
• Citation: 9 F.2d 294
• Parties: SOUTHERN PAC. CO. v. HANLON.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.2d 294 (1925)

SOUTHERN PAC. CO. v.HANLON.

No. 4655.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1925.

Rehearing Denied January 18, 1926.

Devlin & Devlin, Robert T. Devlin, and Wm. H. Devlin, all of Sacramento, Cal., for plaintiff in error.

J. Oscar Goldstein, of Chico, Cal., for defendant in error.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment for the plaintiff in an action to recover damages for personal injuries.The sufficiency of the testimony to warrant the submission of the case to the jury is the only question presented for consideration here.At the time of receiving the injuries complained of the defendant in error was a passenger on a train operated by the plaintiff in error between Portland, Or., and Chico, Cal.Soon after the train left Glendale, Or., it was brought to a sudden stop by an application of the emergency brakes, and the sudden stopping and jerking of the train threw the defendant in error to the floor of the observation car, in which she was riding, causing the injuries complained of.The complaint alleged that the agents, servants, and employees of the plaintiff in error, in charge, carelessly, negligently, and without warning brought the train to a sudden stop, while the same was traveling at a speed of 30 or 40 miles per hour.The answer denied the negligence charged in the complaint, and averred that the train was stopped through the application of the emergency brakes, to save the life of a trespasser who had missed his footing in attempting to board the train.

The testimony on the part of the defendant in error brought the case clearly within the rule: "When 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."Atlas Powder Co. v. Benson (C. C. A.)287 F. 797.See, also, Renfro v. Fresno City Ry. Co., 2 Cal. App. 317, 84 P. 357;Babcock v. Los Angeles Traction Co., 128 Cal. 173, 90 P. 780;Consolidated Traction Co. v. Thalheimer, 59 N. J. Law, 474, 37 A. 132;Scott v. Bergen County Traction Co., 63 N. J. Law, 407, 43 A. 1060;Paul v. Salt Lake City R. Co., 30 Utah, 41, 83 P. 563;Fitch v. Mason City & C. L. Traction Co., 124 Iowa, 665, 100 N. W. 618.

The plaintiff in error concedes the rule in question, but contends that it has no application in this case, because the complaint alleged specifically the act or omission constituting negligence, citing The Great Northern, 251 F. 826, 163 C. C. A. 660.Ordinarily the application of the rule depends upon the facts and circumstances surrounding the accident, and not upon the form of the pleadings.Roberts v. Sierra Ry. Co., 14 Cal. App. 180, 111 P. 519, 527;Nashville Interurban Ry. v. Gregory, 137 Tenn. 422, 193 S. W. 1053;Walters v. Seattle, R. & S. R. Co., 48 Wash. 233, 93 P. 419, 24 L. R. A. (N. S.) 788;Washington-Virginia Ry. Co. v. Bouknight, 113 Va. 696, 75 S. E. 1032, Ann. Cas. 1913E, 546.No doubt, a plaintiff may limit himself to proof of a specific act of negligence, unaided by any presumption, by alleging a specific act of negligence only, such as a slippery bathroom floor, as in The Great Northern Case; but here the defendant in error alleged negligence in stopping the train, just as she might have alleged a negligent derailment or a negligent collision, had such been the fact, and by alleging the negligent stopping of the train she did not assume the burden of proving that there was no excuse or necessity for the application of the emergency brakes, any more than she would have assumed the burden of proving the absence of an excuse for the derailment or collision, had one or the other occurred.

Indeed, independently of the rule of law in question, the burden was on the plaintiff in error to prove the excuse relied on.The testimony on both sides showed that the train was stopped very suddenly by an application of the emergency brakes, and to stop a train in that manner, without excuse or justification, was a plain failure to exercise that high degree of care which the law imposes on passenger carriers.The plaintiff in error realized this, and attempted to justify or excuse ...