Winslow v. Norfolk Hardwood Co.

• Decision Date: 01 April 1908
• Citation: 60 S.E. 1130,147 N.C. 275
• Parties: WINSLOW v. NORFOLK HARDWOOD CO.
• Court: North Carolina Supreme Court

60 S.E. 1130

147 N.C. 275

WINSLOW v. NORFOLK HARDWOOD CO.

Supreme Court of North Carolina

April 1, 1908

Clark C.J., and Hoke, J., dissenting.

Appeal from Superior Court, Perquimans County; O. H. Allen, Judge.

Action by G. H. Winslow against the Norfolk Hardwood Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

The burden of the issue that is the burden of ultimately establishing the case of the party on whom the burden rests never shifts, but the burden of going forward and producing evidence shifts, dependent on the state of the evidence; and where a plaintiff proves a fact which raises a prima facie case, or which entitles him to have the issue submitted to the jury, the burden of proof may shift to defendant, but he is not required to make the evidence preponderate in his favor.

Pruden & Pruden and Shepherd & Shepherd, for appellant.

Chas Whedbee and C. E. Thomson, for appellee.

WALKER J.

The plaintiff, who was an employé of the defendant, and rightfully on one of the trains operated by it, was injured by a derailment of the train. The court charged the jury, with reference to the effect of the derailment as evidence of negligence, in the following words: (1) When it is shown that a derailment has occurred on such a road, and that injury was caused by such derailment, the law presumes the derailment to have resulted from the negligence of the defendant, and the burden shifts to the defendant to show that it did not so occur, and the defendant may rely upon the plaintiff's evidence, or upon a failure of evidence, to remove this presumption. (2) If it appears from the evidence that the track was in good condition and the speed not excessive, considering the kind of road this was, and the evidence of this preponderates and overcomes the presumption raised by the fact of derailment and that the derailment was the result of negligence, the jury will answer the first issue "No"; otherwise, "Yes." The defendant excepted to each of these instructions.

We think the court placed too great a burden upon the defendant, and the charge seems to be in conflict with several decisions of this court. The burden of the issue does not shift, but the burden of proof may shift from one party to the other, depending upon the state of the evidence. When the plaintiff introduces testimony in a case of this kind to the effect that the injury to him was caused by the derailment of a train, it is sufficient to carry the case to the jury, but the burden of the issue remains with the plaintiff, though the burden of proof may shift to the defendant in the sense that, if he fails to explain the derailment by proof in the case, either his own or that of the plaintiff, he takes the chance of an adverse verdict, for then the jury may properly conclude that the plaintiff has established the affirmative of the issue as to negligence by the greater weight of the testimony. But the defendant is not required to overcome the case of the plaintiff by a preponderance of the evidence. In 1 Elliott on Evidence, 139 the rule is thus stated: "The burden of the issue, that is, the burden of proof in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor's case by a preponderance of the evidence, for the actor must fail if, upon the whole evidence, he does not have a preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced." The question has been so recently and so fully considered by us that much further discussion would be useless. Board of Education v. Makely, 139 N.C. 31, 51 S.E. 784; Overcash v. Electric Co., 144 N.C. 572, 57 S.E. 377; Shepard v. Telegraph Co., 143 N.C. 244, 55 S.E. 704; Ross v. Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L. R. A. (N. S.) 298; Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562; Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; Stanford v. Grocery Co., 143 N.C. 419, 55 S.E. 815; Furniture Co. v. Express Co., 144 N.C. 644, 57 S.E. 458.

If the plaintiff proves a fact which raises a prima facie or presumptive case of negligence, or which entitles him to have the issues submitted to the jury, the burden of proof may shift to the defendant, but he is not required to make the evidence preponderate in his favor. Shepard v. Telegraph Co., supra. He may introduce evidence himself, or rely upon that of the plaintiff to defeat the plaintiff's recovery; but the jury must be instructed that, giving due weight to the prima facie case, or the presumption, or to the fact proved by the plaintiff which carries the issues to the jury for their determination, the plaintiff must, in the end, establish the issue in his own favor by the greater weight of the testimony, and for this reason it is said that the burden of the issue is always upon him. It is erroneous to require the defendant to overcome, by a preponderance of the evidence, the case made by the plaintiff, even though the latter may be entitled, by reason of the proof he has offered, to have the issues submitted to the jury with proper instructions from the court.

New trial.

CLARK C.J. (dissenting).

Where an injury occurs, and nothing else is shown, this court has adopted the rule as to res ipsa loquitur that this is evidence of negligence, and does not raise a presumption of negligence. But when the manner of the injury is in proof and it is shown that it was caused by a derailment or collision, this raises a presumption of negligence, and the burden is properly thrown upon the defendant to disprove it. Our authorities are uniform as to this, and there is no cause shown for overruling them. In Marcom v. Railroad, 126 N.C. 204, 35 S.E. 424 (derailment), the court said: "The burden of proving such a failure of legal duty rests upon the plaintiff; but, when that fact is proven or admitted, the burden of proving all such facts as are relied on by the defendant to excuse its failure rests upon the defendant." In Wright v. Railroad, 127 N.C. 229, 37 S.E. 222 (derailment), this court said: "While the mere fact that one has been injured while in a public conveyance does not raise a presumption of negligence in the carrier, it is otherwise when the injury results...