Stumpf v. Delaware, L. & W. R. Co.

• Decision Date: 26 March 1908
• Citation: 69 A. 207,76 N.J.L. 153
• Parties: STUMPF v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

69 A. 207

76 N.J.L. 153

STUMPF

v. DELAWARE, L. & W. R. CO.

Supreme Court of New Jersey.

March 26, 1908.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by George Stumpf against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Argued November term, 1907, before SWAYZE and TRENCHARD, JJ.

Max M. Stallman, for appellant. Edward Kenny, for appellee.

TRENCHARD, J. The plaintiff, George Stumpf, recovered a judgment in the second district court of Newark for personal injuries sustained by him by being struck on the head by a piece of coal while sailing a boat on the Passaic river near the bridge of the defendant, the Delaware, Lackawanna & Western Railroad Company. It was alleged in the state of demand that the missile which struck the plaintiff was willfully thrown upon him by the defendant's employes, or that it was permitted to fall upon him through their negligence. The proof as disclosed by the agreed state of the case was that the coal came from above while the plaintiff and his companions were about to pass beneath defendant's bridge, and that it was either thrown or fell from the bridge or from a coal car, which was a part of a train of the defendant. Upon this proof the defendant moved for a nonsuit on the ground that "no negligence was proven or any cause of action established by the plaintiffs evidence." which motion was denied. The defendant offered no evidence, and a judgment was rendered for the plaintiff.

We think the denial of the motion for a nonsuit was erroneous. It will be observed that the only proof in the case is that the plaintiff was struck on the head by a piece of coal. Whore it came from is not definitely shown. The testimony is that it came either from the bridge or from a car on the bridge. Whether it was thrown by some person with willful intent, as charged in the demand, or fell from the bridge or from a car through some negligence, as alternatively alleged, is left to speculation. As the defendant is not liable to respond in damages to the plaintiff for any willful injury inflicted by strangers or by its employes acting outside of the scope of their duty, the only theory upon which the plaintiff was entitled to recover was that the piece of coal fell from the bridge or from a car through defendant's negligence. No proof having been made of any defect, unusual condition or of any situation involving negligence in the defendant's bridge or car, the question narrows to this: Does proof that the plaintiff was struck upon the head by a piece of coal while traveling beneath the defendant's bridge raise any presumption that the precipitation of the piece of coal resulted from any negligence of the defendant?

It may be stated as a general principle that the burden rests on the plaintiff to prove that the defendant was negligent, and that such negligence was the proximate cause of the injury. In other words, negligence is not presumed, but must be proved. The difficulty of proving the negligence charged does not affect the principle. 6 Thompson on Negligence, $ 7695. ONE exception to this general and familiar rule is the doctrine or principle known as res ipsa loquitur, which is frequently applied to cases involving falling objects, especially parts of a structure falling upon a public highway; but in all the cases where this principle has been properly applied the proof was clear as to the source of the falling object, and the inference legitimate that the object would have remained in its place if the owner of the premises had performed the duty which he owed to the public of maintaining his premises in such a manner as to prevent injury to those lawfully passing the same. Kearney v. London, etc., Ry. Co., L. R. 6, W. B. TOO; Hogan v. Manhattan R. Co., 149 N. Y. 23, 43 N. E. 403; Excelsior Electric Co. v. Sweet, 57 N. J. Law, 224, 30 Atl. 553. But in the cases where the source of the falling object or the place from which it came is, left in doubt, and other circumstances of its precipitation are simply conjectured, the courts have uniformly refused to hold that the doctrine of res ipsa loquitur applied.

In Searles v. Manhattan Ry. Co.. 101 N. Y. 661, 5 N. E. 06. the court said: "There was sufficient evidence to show that the plaintiff's eye was injured by a cinder lodged therein, that the cinder came from a locomotive upon defendant's railway, and that the plaintiff was free from contributory negligence. But there was an utter failure of evidence to show that the accident occurred from any fault, negligence, or unskillfulness on the part of the defendant. * * * To maintain his action, therefore, the plaintiff was bound to give evidence legitimately tending to show that the damage to his eye was caused in consequence of some negligence or unskillfulness chargeable to the defendant. * * * The mere proof of the escape of cinders was not sufficient, as the evidence showed that their escape could not be avoided, and was inevitable. According to the proof, cinders from one of the defendant's locomotives could come only from the smokestack or ash pan. There is no claim...