Southern Pacific Co. v. Hogan

• Decision Date: 02 April 1910
• Docket Number: Civil 1106
• Citation: 13 Ariz. 34,108 P. 240
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, Defendant and Appellant, v. KATHERINE HOGAN, Plaintiff and Appellee
• Court: Arizona Supreme Court

108 P. 240

13 Ariz. 34

SOUTHERN PACIFIC COMPANY, a Corporation, Defendant and Appellant, v. KATHERINE HOGAN, Plaintiff and Appellee

Civil No. 1106

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John H. Campbell, Judge. Affirmed.

The facts are stated in the opinion.

Frank Cox and Francis M. Hartman, for Appellant.

"In any action for damages resulting from negligence, it is essential to the statement of a cause of action that negligence on the part of the defendant be alleged, and if the allegation be denied, it must be proved by the plaintiff by a preponderance of the evidence." Valente v Sierra Ry. Co. of California, 151 Cal. 534, 91 P. 482; 1 Estee's Pleading, par. 327; Roseworn v Washington, 84 Cal. 219, 23 P. 1035; House v Meyer, 100 Cal. 592, 35 P. 308. The burden of proof is not upon the defendant, and therefore if the evidence upon the issue of negligence does not preponderate on either side the defendant is entitled to a verdict. Mexican Central Ry. Co. v. Lauricella, 87 Tex. 277, 47 Am. St. Rep. 103, 28 S.W. 277. "Where there is no proof of negligence except the mere inference or presumption arising from an accident, and this is overcome by positive, undisputed and unimpeachable testimony, there is no question of the preponderance of the evidence, and nothing for the jury to decide." Goss v. Northern Pacific R. Co., 48 Or. 439, 87 P. 149; 4 Elliott on Railroads, par. 1634, and cases. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their recurring as amounts to a reasonable certainty that they will result from the original injury. Strohm v. New York etc. R.R. Co., 96 N.Y. 306; Curtis v. Rochester & Syracuse R.R. Co., 18 N.Y. 541, 75 Am. Dec. 258; Filer v. New York C.R.R. Co., 49 N.Y. 45; Clark v. Brown, 18 Wend. (N.Y.) 229; MacGregor v. Rhode Island Co., 27 R.I. 85, 60 A. 761; Brown v. Chicago etc. Ry. Co., 12 N.D. 61, 102 Am. St. Rep. 564, 95 N.W. 153, 31 Ann. Cas. 783.

Owen T. Rouse, for Appellee.

The allegations stated in the complaint were sufficient to state a cause of action against the defendant. Bonce v. Dubuque St. R. Co., 53 Iowa 278, 36 Am. Rep. 221, 5 N.W. 177; New Jersey R. Co. v. Pollard, 22 Wall. (U.S.) 341, 22 L.Ed. 877; Stokes v. Saltonstall, 13 Pet. (U.S.) 181, 10 L.Ed. 115. The mere fact of a train running off the track is prima facie evidence of negligence. 2 Shearman & Redfield on Negligence, 4th ed., sec. 516; Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799; McKinney v. Neil, 1 McLean C.C. 540, Fed. Cas. No. 8865; Meier v. Pennsylvania R.R. Co., 64 Pa. 225, 3 Am. Rep. 581.

OPINION

DOAN, J.

-- This is an appeal from a judgment for $3,250 rendered upon a verdict of a jury for that amount in a suit brought in the district court of Pima county by the appellee herein against the appellant. On June 14, 1905, Katherine Hogan was a passenger in a car that was part of a train on a railroad of the defendant company, en route from Tucson, Arizona, to Kansas City, Missouri. While a passenger on that train, the car in which Miss Hogan was riding was (with some others of the train) derailed at a switch about thirty-five miles east of Tucson. The plaintiff was bruised on the left hip, and otherwise injured. She brought an action for damages because of these injuries against the appellant company in May, 1906. The action was tried to a jury, and a verdict for $3,000 was set aside by the judge of the trial court, and a new trial granted. The case was again tried to a jury on the eighth day of June, 1908, and a verdict returned against the company for $3,250, on which judgment was rendered, and a motion by the defendant for a new trial was denied. From this judgment and the denial of the motion for a new trial, the defendant has prosecuted this appeal.

The defendant filed a general demurrer to the complaint of the plaintiff, and, while the record does not clearly disclose whether this demurrer was urged by the defendant, the same legal question is presented under objection by defendant to testimony being admitted under the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. It is urged by the appellant that the complaint does not state a cause of action, and is therefore insufficient to authorize the introduction of testimony because of its failure to charge negligence on the part of the company. The only part of the complaint that alleges or tends to allege negligence reads as follows: "That while plaintiff was such a passenger on the said train, in the said car on the day aforesaid, at a point in said Arizona, . . . the said car of the said train in which plaintiff was then seated was thrown from the track, and thrown onto its side, and dragged along on its side a great distance; that by reason of said throwing of said car, and the dragging along on the ground as aforesaid, plaintiff was thrown about said car, and against the sides thereof, and was greatly bruised and injured." As a common carrier of passengers, the railroad is bound to exercise the highest degree of care practicable under the circumstances. Clerc v. Morgan La. R.R., 107 La. 370, 90 Am. St. Rep. 319, 31 So. 886; Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115; Railroad v. Pollard, 22 Wall. 341, 22 L.Ed. 877; Bonneau v. North Shore R. Co., 152 Cal. 406, 125 Am. St. Rep. 68, 93 P. 106. The authorities nearly all agree that when a passenger is injured by the derailing of a train, or by its wreck, or by a collision with some other train or agency, there is a presumption of negligence on the part of the road operating said train that requires an introduction of evidence on the part of defendant to overcome or rebut. Denver R.R. Co. v. Woodward, 4 Colo. 1; Peoria R.R. Co. v. Reynolds, 88 Ill. 418; Pittsburgh R.R. Co. v. Williams, 74 Ind. 462; Seybolt v. N.Y.R.R. Co., 95 N.Y. 562, 47 Am. Rep. 75; Bergen R.R. Co. v. Demarest, 62 N.J.L. 755, 72 Am. St. Rep. 685, 42 A. 729. Numerous authorities supporting the above rule are collated in a valuable note to Overcash v. Charlotte Electric Ry. Light & Power Co., 144 N.C. 572, 57 S.E. 377, 12 Ann. Cas. 1040.

Under this general rule, it would appear that, if the allegations in the complaint in this case are equivalent to an allegation of derailment or wreck, they would be sufficient to raise the presumption of negligence, which, with the other allegations in the complaint, would be sufficient to constitute a cause of action. In line with these authorities, the United States supreme court in the case of Stokes v. Saltonstall, supra held with reference to a stage-coach, a common carrier of passengers at that time, that the fact that the coach was upset was prima facie evidence of negligence and carelessness. This case was afterward approved and followed by the same court in Railroad v. Pollard, supra, and the court there applied the same rule to a railroad train. The above rule is predicated upon the theory that "when a railway car is thrown from the track, and a passenger is thereby injured, the presumption is that the accident resulted either from the fact that the track was out of order, or the train badly managed, or both combined, and the burden is on the company to show that it was not negligent in any respect." The complaint in the case at bar has charged facts that raise a presumption of negligence, which would suffice to put the defendant upon answer and proof, and are therefore sufficient to bring it within the foregoing rule. The appellant cites the case of Valente v. Sierra Ry. Co., 151 Cal. 534, 91 P. 481, in support of this assignment. This is an interesting case, but does not sustain the position of the appellant on this issue. The court in that case cites the rule set forth in Shearman & Redfield on Negligence, paragraph 59: "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...