Va. Electric & Power Co Inc v. Lowry

• Decision Date: 12 March 1936
• Court: Virginia Supreme Court
• Parties: VIRGINIA ELECTRIC & POWER CO, Inc. v. LOWRY.

184 S.E. 177

VIRGINIA ELECTRIC & POWER CO, Inc.

v.LOWRY.

Supreme Court of Appeals of Virginia.

March 12, 1936.

GREGORY, J., dissenting.

Error to Law and Equity Court of City of Richmond.

Action by Adam R. Lowry against the Virginia, Electric & Power Company, Inc. Judgment for plaintiff, and defendant brings error.

Reversed and judgment rendered for defendant.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, CHINN, and EGGLES-TON, JJ.

T. Justin Moore and A. G. Robertson, both of Richmond, for plaintiff in error.

Thomas A. Williams, L. C. O'Connor, and L. S. Bremner, all of Richmond, for defendant in error.

HUDGINS, Justice.

This is an action to recover damages for personal injuries suffered while plaintiff (defendant in error) was a passenger on a street car operated by defendant. The jury returned a verdict for plaintiff in the sum of $1,000. From the judgment entered on the verdict, this writ of error was allowed.

The action of the court in overruling a motion to set aside the verdict is the only error assigned. Plaintiff alleged and proved that a few minutes before noon on July 11, 1932, at Cowardin avenue, in South Richmond, he was accepted by defendant company as a passenger on an electric railway safety car. After travellingsouth on the street car, along the Richmond-Petersburg Turnpike, approximately a mile, and just after the car had passed over Halifax avenue, which intersects the turnpike at approximately right angles, the car suddenly jumped the track and stopped at an angle of nearly 45 degrees to the track. As a result of this derailment, plaintiff was thrown forward between two seats, and was painfully, and possibly permanently injured.

The defendant then introduced evidence which clearly established that the derailment of the car was caused by the breaking of the front axle inside the hub, on the left front wheel. This, in turn, resulted from a progressive fracture in the axle. The diameter of the axle was about four inches, but at the time of the break, it was held together by a slender thread of metal about one inch in diameter, which suddenly gave away. It was proven that a progressive fracture, as the term implies, is a crack in the metal which starts either from the interior, due to some defect in manufacture, or from the outside, possibly from a scratch or bruise. The crack is very slight to begin with, and progresses at a more or less unknown rate to a point where the remaining metal is not sufficient to carry the load imposed on it.

Defendant conclusively established that it was guilty of no negligence in the purchase of the axle, nor in the building and maintenance of the tracks and road bed. It then introduced the following evidence: That it maintains a modern well equipped shop, where experienced mechanics inspect and overhaul its cars and machinery; that each night the cars in use the previous day are placed over a pit, and without cleansing or removing any part of the equipment, the car is given a practical inspection. When the car has been in service for approximately ten days, and has completed 1, 000 miles of operation, it is given a thorough general inspection, in so far as such inspections can be made without dismantling and rebuilding. After a car has completed 75, 000 miles of operation, it is carried to the shop, dismantled, overhauled, and rebuilt, except that the gear and wheels are not removed from the axle unless replacement or repairs are found necessary. When the wheels are removed from the axle, the axle is cleaned and "bathed" in oil, and a coat of whiting applied; it is then suspended in a sling and struck with a hammer, in order to set up vibrations. If any cracks have developed, the oil or grease will ooze from the crack and discolor the whiting. If none are revealed, other tests are applied to determine whether the axle is fit for further service.

The life of an axle is about 500, 000 miles of operation. This particular axle had been in use for some 191, 000 miles, and it had completed some 42, 000 miles of operation since the wheels had been removed and the whiting test applied, and at the intervals mentioned it had been subjected to the other tests enumerated.

Two engineers employed by defendant, and three employed by other companies, testified that this method of inspection was the standard method adopted and used by the street railway industry operating in other sections, and that no better practical method of inspection had been found. The fracture in this axle was just inside the hub, and could not have been detected without removing the wheel. It requires the pressure of about 60 tons to put a wheel in place on an axle, and from 60 to 150 tons of pressure to remove it. Because this pressure, and the tool work required to remove and replace the wheels, subject the axle to hazards which tend to weaken it, a more frequent inspection of the axle, within the hub of the wheel, has been found impracticable.

On this evidence the jury returned a verdict for plaintiff, which was approved by the trial court.

In this court neither party raised any objection to the instructions, yet there are sharply divergent views on the principles of law applicable. Plaintiff contends that when he had proved, that while a passenger, and exercising due care for his own safety, he had been injured by the derailment of a car in which he was riding, he thereby cast on the carrier the burden of proof to establish that it had been guilty of no negligence whatever, and that the damage had been occasioned by an inevitable casualty, or by some cause which human care and foresight could not prevent. In support of this contention he cites Baltimore & O. Ry. Co. v. Wightman's Adm'r, 29 Grat. (70 Va.) 431, 26 Am.Rep. 384; Richmond Ry., etc., v. Hudgins, 100 Va. 409, 41 S.E. 736; Norfolk Ry. & L. Co. v. Spratley, 103 Va. 379, 49 S.E. 502; Washington-Virginia Ry. Co. v. Bouk-night, 113 Va. 696, 75 S.E. 1032, Ann.Cas. 1913E, 546. It is quite true that these cases support this contention. But in Norfolk So. Ry. Co. v. Tomlinson, 116 Va. 153, 161, 81 S.E. 89, 92, Judge Buchanan speaking for a unanimous court said: "In the Tanner Case, supra [100 Va. 379, 41 S.E. 721], instruction No. 3, given for the defendant and approved by this court as a correct statement of law, was as follows: 'The court instructs the jury that in considering the question of negligence in this case, if they believe from the evidence in the case that the plaintiff was a passenger on the defendant's train and received the injuries complained of in the wreck of said train, then at the beginning of the trial, and before any evidence was introduced upon the subject of negligence, there was a presumption of the law in favor of the plaintiff that the accident was caused by the negligence of the defendant, but there has been evidence introduced on both sides in the trial of this case; and, if the jury believe from the whole evidence that it exercised the highest degree of care that prudence and foresight would show to it was necessary in the selection, repair, and use of its machinery and cars, and in the construction and repair of the track where the derailment of said train occurred, and in the running and management of said train at the time of the accident, the jury shall find for the defendant.'

"That instruction left it to the jury to determine whether or not upon the whole evidence the passenger carrier had exercised that high degree of care required of it, as pointed out in the instruction, so as to rebut the presumption of negligence arising from proof of the derailment itself.

"In many cases, as in this, the maxim res ipsa loquitur applies. The affair speaks for itself. But whether the evidence relied on by the plaintiff to make out a cause of action is the accident itself, from which arises a presumption of negligence, or is direct evidence of negligence, the burden of proof as to the defendant's negligence remains upon the plaintiff throughout the trial. * * *

"In order to rebut the presumption of negligence arising from the derailment, the defendant, we do not think, was bound to satisfactorily account for the cause of the accident. Sometimes accidents occur which are inexplicable, and to hold that a carrier of passengers must, under all circumstances, show what caused the accident in order to rebut the presumption of negligence arising from the accident itself would, in such cases, impose an impossibility upon the carrier, and render it practically an in surer of the safety of the passenger injured. * * *

"It is true that an instruction substantially like the instruction in question was given in the case of Washington, etc, Ry. Co. v. Bouknight, supra, and upon a writ of error was approved by this court; but, upon further consideration of the question, we are of opinion that the instruction is not a correct statement of the law, is in conflict with the general principles announced in that case as to the burden of proof and the submission of the question of negligence to the jury upon the whole evidence in the case, and is contrary to the principles embodied in the instructions given and approved in the Tanner Case, supra, and the great weight of authority on the subject."

This case marks a decided departure from former decisions in at least two particulars: (1) That the rule of res ipsa loquitur, when applied to passengers injured in derailment cases, does not shift the burden of proof to defendant, but remains on the plaintiff throughout the case; (2) that in such a case the defendant is not required to account for the cause of the accident.

Notwithstanding the fact that the court receded from its former decision in the two particulars named, in the course of the opinion it approved the action of the trial court in refusing an instruction reading as follows: "That they cannot, under their oaths, find for the plaintiff, unless they believe from the evidence that the defendant has been shown to have...