Virginia Elec. & P. Co. v. Lowry

• Decision Date: 12 March 1936
• Citation: 166 Va. 207
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY, INC. v. ADAM R. LOWRY.
• Court: Virginia Supreme Court

Page 207

166 Va. 207

VIRGINIA ELECTRIC AND POWER COMPANY, INC. v. ADAM R. LOWRY.

Supreme Court of Virginia, Richmond.

March 12, 1936.

Present, All the Justices.

1. CARRIERS — Carriers of Passengers — Derailment — Effect of Rule of Res Ipsa Loquitur. — The rule of res ipsa loquitur, when applied to passengers in derailment cases, does not have the effect of shifting the burden of proof, and does not convert defendant's general issue into an affirmative defense, but when the evidence is all in, the question of preponderance of evidence is for the jury.

2. CARRIERS — Carriers of Passengers — Derailment — Instructions. — In an action by a passenger against a carrier to recover for injuries resulting from a derailment, in a proper case the jury may be instructed that it is not incumbent on defendant to account for the means or cause of the happening of the event resulting in injury to plaintiff; or, after due consideration of all the evidence, if they believed that it was just as probable that the injury resulted from a cause for which defendant was not responsible as a cause for which it was responsible, they should find for defendant.

3. CARRIERS — Carriers of Passengers — Derailment — Duty of Court upon Motion for Directed Verdict. — In an action by a passenger against a carrier to recover for injuries sustained by reason of a derailment, after all evidence for both sides is in, and a motion is made to take the decision from the jury, either by a motion for a directed verdict, or to strike the evidence, it is not the duty, or within the province of the court, to determine whether the evidence is equally balanced, or whether the preponderance of the evidence is on one side or the other. But it is the duty of the court to determine whether or not there exists any reasonable hypothesis on which the jury could base a finding of defendant's negligence, and if such a hypothesis exists, then the motion should be overruled.

4. STREET RAILROADS — Derailment — Evidence Making our Prima Facie Case — Case at Bar. — In the instant case, an action against a street railroad company, the evidence showed a passenger guilty of no contributory negligence injured by the derailment of the car in which he was riding; an accident which does not usually happen when the carrier exercises that high degree of care which the law requires for his safety.

Held: That these facts made out a prima facie case.

5. STREET RAILROADS — Derailment — Evidence Requiring Direction of Verdict for Defendant — Case at Bar. — In the instant case, an action by a passenger against a street railroad company to recover for injuries sustained as the result of a derailment, defendant produced proof that the derailment was due to a broken axle, which in turn was the result of a defect of unknown origin and of indeterminate duration; that in the purchase of this particular piece of machinery, it had exercised that high degree of care which the law requires; that the method of inspection was that which had been demonstrated to be practicable by its adoption and use on the part of a recognized class of persons engaged in similar affairs, and that such inspection did not, and could not have revealed the defect.

Held: That there was no reasonable hypothesis on which to sustain a verdict based on defendant's negligence, and motion for a directed verdict should have been granted.

6. STREET RAILROADS — Derailment — Evidence Showing Sole Cause of Derailment Was Broken Axle — Case at Bar. — In the instant case, an action by a passenger against a street railroad company to recover for injuries sustained as the result of a derailment, defendant contended that the derailment was caused by a broken axle, due to a defect which the method of inspection, shown to be a proper one, could not have revealed, while plaintiff contended that the breaking of the axle was the result of the derailment and not the cause. After the wreck a thorough examination was made of all parts of the machinery and equipment, and all except the axle was found in good order, and in proper place.

Held: That the evidence was conclusive that the sole cause of the derailment was the breaking of the axle.

7. JUDICIAL NOTICE — Existence of Defects in Metal or Machinery. — It is a matter of common knowledge that occasionally there is a defect in metal or in machinery which causes it to break regardless of the care used to manufacture, select and maintain such machinery.

Error to a judgment of the Law and Equity Court of the city of Richmond. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

T. Justin Moore and Archibald G. Robertson, for the plaintiff in error.

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

HUDGINS, J., delivered the opinion of the court.

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 railways safety car. After traveling south 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 forty-five 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 way. 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 of 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 sixty tons to put a wheel in place on an axle, and from sixty to one hundred and fifty 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. Wightman's Adm'r, 29 Gratt. (70 Va.) 431, 26 Am.Rep. 384; Richmond Ry., etc. Hudgins, ...