§ 2. PROVING NEGLIGENCE. Burden of Proof. The litigant who bases his case or his defense upon negligence, is bound to prove that his opponent was negligent. The presumption of law is that every person performs his legal duty.23 Accordingly, the burden of proving negligence, in any litigation, rests throughout the case on the party asserting it; although, as in other cases, the burden of giving evidence may shift from one side to the other, during the progress of the trial. If an ordinary bailee of goods for hire is sued for their loss, the bailor makes out a prima facie case of negligence by evidence of the bailee's failure to return the goods upon demand. If the bailee then shows that the goods were stolen from him or destroyed, the prima facie case is met, and plaintiff must go further and prove that the loss was due to some negligence or want of care, such as a prudent man would take under similar circumstances of his own property."24 66 The same evidence Presumption, when Contract is Broken. may or may not establish a prima facie case of negligence on the part of the defendant, according as it shows a breach of contract on the defendant's part or not. For example, a stage coach upsets; 25 or a railroad train is suddenly jolted; 36 or a steamship is used for the convenience of those visiting the building, from the liability or the common-carrier of passengers. 23 Huff v. Austin, 46 O. St. 386, 387, 21 N. E. 864, 15 Am. St. R. 613 (1889). 24 Claflin v. Meyer, 75 N. Y. 260, 31 Am. R., 467 (1878). In Tex. & P. Ry. v. Barrett, 166 U. S. 617, 619, 17 Sup. Ct. 707, 41 L. Ed. 1136 (1896), it is said of an employee, who sues his employer for failure to provide suitable appliances: “The burden of proof is on the plaintiff throughout the case to show, that the boiler and engine, which exploded, were improper appliances to be used on its railroad by defendant; and that by reason of the particular defects, pointed out and insisted on by plaintiff, the boiler exploded and injured him; Norfolk etc. Ry. v. Cromer, 99 Va. 763, 40 S. E. 54 (1901). 25 Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 10 L. Ed. 115 (1839); Boyce v. Cal. Stage Co., 25 Cal. 460 (1864); Wall. v. Livezay, 6 Col. 465 (1882). 26 Railroad Co. v. Pollard, 22 Wall. (U. S.) 341, 22 L. Ed. 877 (1874). In Loudon v. Eighth Ave. Ry., 162 N. Y. 380, 56 N. E. 988 (1900), the plaintiff joined two street car comanies in an action for injuries sustained in a collision. The court thrown with extraordinary force against a wharf; 27 or a train is derailed by obstacles on the track, or by defective rails or defective rolling stock; 26 and a passenger is injured. The accident itself affords prima facie evidence of the carrier's negligence, for he contracted to carry the passenger safely. Had a servant of the carrier been harmed in the same accident, a different rule would obtain in his case. The fact of accident would carry with it no presumption of negligence, on the part of the employer "; and the employee would be bound to establish, as an affirmative fact, that the employer had been guilty of negligence.29 66 A similar difference is generally recognized "between actions founded in negligence, where a contract relation existed between the parties, and those in which the defendant owed no duty, other than to use such ordinary care and caution, as the nature of the business demanded to avoid injury to others." 30 Res Ipsa Loquitur. Except in cases, where the defendant has bound himself by contract to do something safely, or where a valid statute imposes a similar obligation,31 the phrase, res ipsa 27 Inland etc. Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270 (1890). 28 Gleeson v. Virginia Mid. Ry., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458 (1890); Virginia C. Ry. v. Sanger, 15 Gratt. (Va.) 230 (1859). 29 Patton v. Texas & P. Ry., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361 (1900); Mountain Copper Co. v. Van Buren, 123 Fed. 61, 59 C. C. A. 279 (1903). 30 Cosulich v. Standard Oil Co., 122 N. Y. 118, 126, 25 N. E. 259, 19 Am. St. R. 475 (1890); Huff v. Austin, 46 O. St. 386, 21 N. E. 864, 15 Am. St. R. 613, (1889); Thompson, S. D., in 10 Cen. L. J. 261 (1880); Spees v. Boggs, 198 Pa. 112, 47 At. 875, 52 L. R. A. 833, 82 Am. St. R. 792 (1901); Veith v. Hope Salt Co., 51 W. Va. 96, 41 S. E. 187, 57 L. R. A. 410 (1902). 31 Atchison etc., Ry. Matthews, 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909 (1898); Clark v. Russell, 97 Fed. 900 38 C. C. A. 541 (1899), referring to statutes imposing liability upon railroad companies wholly independent of negligence; Stewart v. Ferguson, 164 N. Y. 553, 58 N. E. 622 (1900); Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811 (1903); True & True Co. v. Woda, 201 Ill. 315, 66 N. E. 369 (1903), violation of city ordinance as to height of lumber piles; Chesley v. Nantasket etc. Co., 179 Mass. 469, 61 N. E. 50 (1901), violation of act of Congress as to sounding bell or fog-horn; Jones v. Ill. Central Ry., 75 Miss. 970, 23 So. 358 (1898) violation of ordinance as to speed of train; Elmore v. Sea loquitur, is rarely to be applied literally. In other words, the plaintiff rarely makes out a case of negligence by merely showing that some harm has been inflicted upon him by an accident, in connection with the defendant's affairs. To quote from a modern decision; 32 "in no instance can the bare fact that an injury has happened, of itself and divorced from all surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. . . . This phrase (res ipsa loquitur), which literally translated means that the thing speaks for itself,' is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident.' "33 34 A plaintiff who shows that he was injured by the falling of a building into the street, or by the falling of the pole of a toll-gate as he was passing thereunder, makes out a prima facie case of negligence; while one who proves that he was injured by the bursting of a fly-wheel used by the defendant, or the bursting of a boiler or engine, or the fall of an elevator 38 does not make out such a 37 board etc. Co., 132 N. C. 865, 44 S. E. 620 (1903), violation of statute requiring automatic couplings; Kelly v. Anderson, 15 S. D. 107, 87 N. W. 579 (1901), violation of statute as to setting stubble fires in certain months; Norfolk Ry. v. Corletto, 100 Va. 355, 41 S. E. 740 (1902), violation of statute as to speed of train. In all of these cases it was held, that a prima facie case of negligence is made out, by evidence of the violation of the statute or ordinance. 32 Benedict v. Potts, 88 Md. 52, 40 At. 1067, 41 L. R. A. 478 (1898). City of Atlanta v. Stewart, 117 Ga. 144, 43 S. E. 443, (1903); Byrne v. Boodle, 2 H. & C. 722, 33 L. J. Ex. 13 (1863); Kearney v. London etc. Ry., L. R. 5 Q. B. 441 (1870), 36 L. R. 6 Q. B. 759, 40 L. J. Q. B. 285 Mullen v. St. John, 57 N. Y. 567, 15 Am. R. 530 (1874); Murray v. McShane, 72 Md. 217, 36 Am. R. 369 (1879), a brick fell on plaintiff from defendant's dilapidated wall. 35 Hyde's Ferry Turnpike Co. v. Yates, 108 Tenn. 428, 67 S. W. 69 (1902). 36 Piehl v. Albany Ry., 162 N. Y. 617, 57 N. E. 1122 (1900). 37 Losee v. Buchanan, 51 N. Y. 476, 10 Am. R. 623 (1873); Marshall v. Wellwood, 38 N. J. L. 339, 20 Am. R. 394 (1876). 38 Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. R. 630 (1901). case. In the one set of cases, the circumstances are such as to afford just ground for a reasonable inference that according to ordinary experience, the accident would not have occurred except for want of due care; while in the other set, they do not warrant such an inference.39 Functions of Court and Jury. A learned English writer, after alluding to the fact that the discussions concerning the several functions of the court and the jury, in negligence cases, have not been carried on by modern judges in the manner best fitted to promote the clear statement of principles, and declaring that it is difficult to sum up the results of these discussions or to reconcile them, expresses the opinion that the tendency of modern judicial rulings in England has been, if not to enlarge the province of the jury, to arrest the process of curtailing it." It is doubtful whether the same tendency exists in this country." True, courts will not lightly take cases from the jury. "Jurors are the recognized triers of questions of fact, and, ordinarily, negligence is so far a question of fact as to be properly submitted to and 177 30 Judson v. Giant Powder Co. 107 Cal. 549, 40 Pac. 1020, 5 L. R. A. 498 (1895); Wadsworth v. Boston El. Ry., 182 Mass. 572, 66 N. E. 421 (1903); Johnson v. Walsh, 83 Minn. 74, 85 N. W. 910 (1901); Paynter v. Bridgeton etc. Co., 67 N. J. L. 619, 52 At. 367 (1902); Cole v. N. Y. Bottling Co., 23 App. Div. (1897); Weidmer v. N. Y. El. Ry., 114 N. Y. 462, 21 N. E. 1041 (1889); Volkmar v. Man. Ry., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. R. 678 (1892); Shafer v. Lacock, 168 Pa. 497, 32 At. 44, 29 L. R. A. 254 (1895); Stearns v. Ontario Spinning Co., 184 Pa. 519, 39 At. 292, 63 Am. St. R. 807 (1898); Richmond etc. Co. v. Hudgins, 100 Va. 409, 41 S. E. 736 (1902); The Joseph B. Thomas, 86 Fed. 658, 30 C. C. A. 333, 56 U. S. App. 619, 46 L. R. A. 58 (1898). 40 Pollock, Torts (6 Ed.) p. 426. "Hunter v. Cooperstown & S. V. Ry., 112 N. Y. 371, 19 N. E. 820, 8 Am. St. R. 75, 2 L. R. A. 832 (1889); s. c. again 126 N. Y. 18, 26 N. E. 958, 12 L. R. A. 429 (1891). The judgment on a verdict for the plaintiff was reversed, because in the opinion of a majority of the Court of Appeals, (a majority of four to three when the case was before that court the second time), the evidence failed to make out a case of negligence on the part of the defendant, and did clearly establish contributory negligence on plaintiff's part. Gavett v. Man. & L. Ry., 12 Gray (82 Mass.) 501, 77 Am. Dec. 422 (1860), affirming a judgment on a verdict directed by the trial court in defendant's favor, on the ground that there was no proof of due care, and no facts were shown from which an inference of such care could by any possibility be drawn by reasonable men. determined by them. At the same time the judge is primarily liable for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determiation, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility. He has the same opportunity that the jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, and when in his deliberate opinion there is no excuse for a verdict save in favor of one party, and he so rules by instruction to that effect, an appellate court will pay large respect to his judgment." 42 43 An admirable discussion of this topic is to be found in a modern Connecticut case, an outline of which is presented in the headnotes as follows: "The conception of negligence involves the idea of a duty to act in a certain way towards others and a violation of that duty by acting otherwise. It involves the existence of a standard with which the given conduct is to be compared and by which it is to be judged."* Where this standard is fixed by law, the question whether the conduct in violation of it is negligence, is a question of law. And where the standard is fixed by the general agreement of men's judgments, the court will recognize and apply the standard for itself.45 But where it is not so prescribed or fixed, but rests on the particular facts of the case and is to be settled for the occasion by the exercise of human judgment upon these facts, as where the standard is the conduct in the same circumstances of a man of ordinary prudence, there the question is one of fact and not of law." 46. 42 Brewer J., in Patton v. Texas etc. Ry., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361 (1900), affirming a judgment upon a verdict for defendant, directed by the trial judge, and affirmed by the Circuit Court of Appeals. 43 Farrell v. Waterbury Horse Ry., 60 Conn. 239, 21 At. 675, 22 At. 544 (1891). "Detroit & M. Ry. v. Van Steinburg, 17 Mich. 99, 119-123, (1868); Fernandez v. Sac City Ry., 52 Cal. 45, 50 (1877). 45 Solomon v. Manhattan Ry., 103 N. Y. 437, 442, 9 N. E. 430, 57 Am. R. 760 (1886). "It is, we think, the general rule of law, that the boarding or alighting from a moving train is presumably and generally a negligent act per se;" Fleming v. Wes. Pac. Ry., 49 R. 633 (1874). Cleveland etc. Ry. v. Crawford 24 O. St. 651, 15 Am. R. 633, (1874). |