Plumb v. . Richmond Light R.R. Co.

Pound, J. Plaintiff, a passenger in defendant’s trolley car, riding on the running board, was injured in a collision between the car and a motor truck. On a unanimous affirmance of a judgment in favor of the plaintiff, entered on the verdict of a jury, leave to appeal to this court was granted by the Appellate Division. Testimony was given by plaintiff of the injury he sustained and the surrounding circumstances as tending to show defendant’s negligence; testimony was then given by defendant tending to explain the occurrence as happening without fault on its part. The evidence was then closed, no further evidence being offered by the plaintiff. The error complained of is as follows: The trial court instructed the jury: “ The management and control of the transportation of the passenger is wholly confided to the employees operating the car, and the passenger cannot be expected to account for a collision if one takes place. When such a collision takes place, there arises, as a rule of evidence, a presumption of negligence upon the part of the carrier, which calls upon it for an explanation. I do not mean, in making this statement, that this rule of evidence shifts the burden of proof from the shoulders of the plaintiff on to the *288 shoulders of the defendant, but only that the company from the fact of the collision, if you find that there was a collision, is called upon to make an explanation; and then it is for you to determine on the whole «case, on all the evidence, whether there is a preponderance of the evidence in favor of the plaintiff’s contention that there was negligence upon the part of the defendant.” To this portion of the charge defendant excepted in these words: “ I take an exception to that portion of your Honor’s charge wherein and whereby you practically charge that this is a res ipsa case.” The only question thus presented is whether res ipsa loquitur was properly applied. Res ipsaioquitur is a loose but much-used phrase of limited application which is a symbol for the rule that the fact of the occurrence of an injury and the surrounding circumstances may permit an inference of culpability on the part of the defendant, make out plaintiff’s prima facie case, and present a question of fact for the defendant to meet with an explanation. The term “ surrounding circumstances ” in this connection refers not to circumstances directly tending to show lack of care in handling, such as excessive speed, lack of proper control of the car and the like, which tend in themselves to establish plaintiff’s case, but only to mere neutral circumstances of control. and management by the defendant which may, when explained, appear to be entirely consistent with due care. Shifting the burden of explanation or of going on with the case does not shift the burden of proof. If a satisfactory explanation is offered by the defendant, the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance of evidence in favor of plaintiff’s contention. (Griffen v. Manice, 166 N. Y. 188; Goldstein v. Pullman Co., 220 N. Y. 549.) The charge as given was proper in that this is “ a res ipsa case.” Although the plaintiff’s case rested wholly on proof of the accident, the surrounding circumstances *289 and the absence of an explanation, he would, at the close of his case, have been entitled to go to the jury on the question of fact thus presented, if no further evidence had been offered. If a passenger in a street car is injured by reason of a collision with another vehicle moving in the street, a presumption of negligence arises against the carrier although the same presumption does not arise against the driver of the other vehicle. “ The danger of collision with other vehicles moving on the street is always present, and the employee managing and controlling the car must be on the alert to avoid that danger. * * * The management and control of the transportation of the passenger is wholly confided to the employees operating the car, and the former cannot be expected to be on the watch either as to its management or that of other vehicles, or if a collision takes place, be able to account for its occurrence. Therefore, when such a collision occurs there arises a presumption of negligence on the part of the carrier, which calls upon it for explanation.” (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 386.) This presumption arises out of the duty of the carrier to its passengers “ to exercise the very highest degree of care in the management and operation of its ” car (Grimshaw v. Lake Shore & M. S. Ry. Co., 205 N. Y. 371, 378), or if the application of such a strict rule under the facts of the case would be unjustifiable, at least “ to" exercise that care and skill to avoid the accident, which human prudence and foresight should have suggested ” under the circumstances. (Stierle v. Union Ry. Co. of N. Y. City, 156 N. Y. 70; S. C., 156 N. Y. 684, 686.) The question whether defendant’s explanation was adequate is not raised by any reviewable exception. If the learned trial court had instructed the jury that they had the right on all the evidence to infer, from the happening of the accident alone, that the defendant *290 was negligent, i. e., that a presumption of negligence arose therefrom which was evidence for the plaintiff, a different question might have been presented on this record. The rule, strictly speaking, merely takes the place of evidence as affecting the burden of proceeding with the case, and is not itself evidence. But the learned justice stated the abstract rule in full and ended by requiring the plaintiff to establish his case by a preponderance of evidence. He gave no instructions as to the weight, if any, which might be given to the so-called presumption of negligence on the whole case. On a unanimous affirmance we must assume that defendant failed to meet the burden imposed on it. We may not read the evidence to learn what its explanation was. We must assume that it w;as inadequate and that plaintiff properly stood before the jury on his prima facie case. The mere fact of a collision, under circumstances consistent with due care on the part of the carrier, may not, in reason, preponderate over credible evidence showing that mismanagement of the other vehicle was the proximate cause of the injury. (Alexander v. Rochester City & B. R. R. Co., 128 N. Y. 13; Gibson v. Int. Trust Co., 177 Mass. 100, 103.) The judgment should be affirmed, with* costs.