Sullivan v. Capital Traction Co.

Mr. Justice Van Orsdel delivered the opinion of the Court: In the refusal of the court below to grant plaintiff’s instruction number one, which is the first assignment of error, we think no365 error was committed. The material parts of the instruction requested are embraced in the following instruction, which was given by the court: “Now, gentlemen, it transpires that the plaintiff, at the time he was injured, was riding upon the front platform of the trailer or rear car of the defendant’s train, and therefore it is proper that I should say to you that it is. not, as matter of law, negligence in itself for a passenger upon a street car to ride upon the platform thereof, even though there be unoccupied seats in the car; and if in the present case you find from the evidence that the plaintiff was riding on the platform of the car from which he was thrown, and that his being thrown from said car was the immediate result of the negligence of the agents of the defendant in driving or running said car into and around the curve at or near the corner of B and First streets, southwest, the point of the accident, at a negligent rate of speed, so as to cause a violent or unusual swerve of said car, which would be dangerous to passengers therein and thereon, then the plaintiff is entitled to recover, unless you further find from the evidence that the plaintiff, as a passenger upon said car, Avas not at the time he was injured in the exercise of due and ordinary care, and that by reason thereof he contributed to his own injury.” It will be observed that this instruction properly states the law relative to the case, and embraces the material points of the instruction refused. We also think that, in refusing to grant the second and third instructions requested by plaintiff, the court committed no error. These instructions were objectionable in that they related to a single portion of the evidence, and required the jury to find negligence on the part of the defendant from that fact. As in the first assignment of error, the court gave an instruction which we think was sufficient to embrace everything requested in the second and third instructions asked by plaintiff, and which more properly submitted to the consideration of the jury the particular point involved. The instruction given by the court was as follows: “If you shall find from the preponderance of the evidence that the plaintiff was injured on the occasion in question by a lurch or jerk of the street car on which he was a pas — 366 — senger,- in passing around "a curve on the defendant’s car track at the corner' of First and B streets, southwest, in -the city of Washington; District- of Columbia, and that he did not contribute to such injury by any negligence of his own, then- the jury are further' instructed, as matter of law, that, ■ in ■ order to enable the plaintiff to recover.from.the defendant for injuries occasioned by such sudden lurch or jerk of the car, they must, affirmatively find from the evidence that such lurch or jerk was negligent and extraordinary and dangerous to passengers. In-determining the question -of negligence in this case, that is, whether the plaintiff was injured as the direct and proximate result of-the negligence of .the defendant, or of his own negligence as a contributing cause thereof, or of the concurrent and mutual negligence of both parties, you should take into consideration all the facts and circumstances of the ease as they have come to you from the witness stand, guided by the instructions of the court as to the law applicable thereto.” It will be observed that in this instruction the court directed the jury that, in determining the question of defendant’s negligence, they should consider all the facts and circumstances of the case. In the instructions requested by plaintiff, and refused by the court, it was sought to establish negligence from a single circumstance in the case. It has been held by this court repeatedly that it is error for the court to select from the evidence any particular' part thereof for the matter of a special comment and charge to the jury. Davis v. Coblens, 12 App. D. C. 51; Bradford v. National Ben. Asso. 26 App. D. C. 268; Wallace v. United States, 18 App. D. C. 152; Turner v. American Secur. & T. Co. 29 App. D. C. 450. We now come to the consideration of a more difficult branch of the case—the exception of the plaintiff to the granting of-certain instructions by the court, which embraces the fourth, fifth, and sixth assignments of error. These three assignments can be considered together. By these instructions the court cast upon the plaintiff the burden of proving by the preponderance of the evidence the. negligence of the defendant. It is sought by counsel for plain-: — 367 — tiff to invoke what some courts have loosely called a rule of evidence that, where a passenger is injuréd while in the care of a common carrier, it is .sufficient for the plaintiff, in order to' establish a prima facie, case, to show that he was injured while such passenger, when the burden shifts to the defendant to negatively show that the injury occurred through no lack. of. care on its part, or to show that the injury was occasioned' by the contributory negligence of the plaintiff. The rule that the mere happening of an accident to a passenger is sufficient to create an inference of negligence on the part of the.carrier is limited to certain well-defined, cases, and,, we think; does not operate in any case to impose upon the carrier the burden of establishing by the preponderance of the evidence that it was free from the charge of negligence. The burden, is always upon the plaintiff to make out his case. It is true that where, by the failure of appliances of transportation, or by collision, am accident happens whereby a passenger is injured, and the circumstances of the accident are peculiarly within the knowledge of the carrier, such passenger may, in his declaration and proof, content himself with establishing his right to recover, by proving that he was a passenger and sustained the injury while such. This is sufficient under such circumstances to establish a prima facie case, which, in the absence of any explanation on the part of the defendant, would entitle the plaintiff to recover; but even this does not relieve the plaintiff from establishing his case by the preponderance of the evidence. It merely raises an inference of negligence, which calls for rebuttal or explanation on the part of the defendant, .and which, in the absence of such explanation, will authorize the plaintiff to recover. We think the difficulty arises from treating the terms “burden of proof” and “weight of evidence” as synonymous. The burden of proof always remains with the party alleging the fact or state of facts m support of his case. The weight of evidence shifts from side to side during the trial accordingly as the proofs are in support or denial of the main fact or facts sought to be established. The distinction is well defined in Cen — 368 — tral Bridge Corp. v. Butler, 2 Gray, 130, as follows: “The burden of proof and the weight of evidence are two very different things. The former remains on the party affirming a fact in support of his ease, and does not change in any aspéct of the cause; the latter shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of the main fact te he established.” In the present ease the plaintiff is bound to establish by the preponderance of the evidence his right to recover, which involves two important points: First, that he was a passenger in the sense that would entitle him to maintain his action; and, second, that the accident was caused by the negligence of the defendant. It is incumbent upon him to establish these facts. Of course, the duty of rebuttal and explanation shifts necessarily from time to time according to the proof offered by one party or the other in support or denial of the main facts upon which plaintiff’s right to recover is based. In other words,- the burden of establishing the negligence of the defendant is upon the plaintiff, and the burden of establishing the contributory negligence of the plaintiff is upon the defendant. All the competent testimony adduced in the trial is for the consideration of the jury, and is not to be burdened with legal presumptions, either as to the negligence of defendant, or lack of contributory negligence on the part of the plaintiff. The proof is the sole question that concerns the jury, with the general burden resting upon the plaintiff of establishing his case by the preponderance of all the evidence. This, we think, is not only the established law of this jurisdiction, but of the courts generally. In Metropolitan R. Co. v. Snashall, 3 App. D. C. 420, a passenger was injured while riding on one of defendant’s horse cars. The court said: “Under the circumstances of this accident, there having been no derailment, no collision, no failure of the means or appliances for transportation, no presumption of negligence on the part of the carrier could be indulged from the mere happening of the accident itself. Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160. Nor is it to be presumed from the mere — 369 — fact of plaintiff’s fall from the car that she did not exercise ordinary care. The existence of negligence on the one hand, and of contributory negligence on the other, is to be established by reasonable inference from the facts and circumstances surrounding the accident and illustrating its cause, and not from the mere happening thereof.” In Harbison v. Metropolitan R. Co. 9 App. D. C. 60, the passenger was injured while walking along the footboard, toward the rear of the car, looking for a vacant seat. It was insisted on the part of the plaintiff that the maxim of res ipsa loquitur applied to the facts stated, and that, being a passenger on the car, a presumption arose from the happening of the accident, which defendant was required to rebut. In the opinion, the court quoted, with approval, from the case of Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436, 452, as follows: “The burden is always upon the plaintiff to make out his case. Where negligence furnishes the cause of action, it must be proved by the party alleging it. There are some cases in which it has been said that the law. presumes negligence on the part of the carrier from the mere happening of an accident to a passenger. This is not a strictly accurate statement of the law. The most that can properly be said is that, when an injury occurs through some accident to the means of transportation which is under the management of the carrier’s employees, and which, if they exercise proper care, cannot ordinarily happen, it affords reasonable evidence, in the absence of explanation, from which negligence may be inferred. Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 555, 35 L. ed. 271, 11 Sup. Ct. Rep. 653; Baltimore & O. R. Co. v. State, 63 Md. 135; Curtis v. Rochester & S. R. Co. 18 N. Y. 543, 75 Am. Dec. 258; Federal Street & P. Valley R. Co. v. Gibson, 96 Pa. 83; San Antonio & A. P. R. Co. v. Robinson, 73 Tex. 277, 11 S. W. 327; Scott v. London Dock Co. 3 Hurlst. & C. 596; Metropolitan R. Co. v. Snashall, 3 App. D. C. 420, 432. In this case, there was no derailment of the car, no injury to it or the track, no accident of any kind affecting it, or that could have affected any passenger inside the cars. There is — 370 — no legally established fact' upon which to found the presumption or inference of negligence on the: part of the defendant; The sole foundation for the inference of negligence exists in the fact that intestate was instantly killed by' coming in contact with the post of a bridge which is not as wide as is now customary in the construction of new bridges.”- Our attention has been called to the language of Chief Justice Alvey in City & Suburban R. Co. v. Svedborg, 20 App. D. C. 543, in relation to the burden of proof on the defendant, but we cannot find that the learned chief" justice went further than to hold that the burden cast upon the railroad company was that of “explaining the circumstances of the accident so as to relieve itself from liability.” In the same case the chief justice quoted, in support of his decision, from the opinion of the Supreme Court in the case of Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458, 11 Sup. Ct. Rep. 859, as follows: “The law is that the plaintiff miist show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is- for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” In this case the plaintiff had been injured while a passenger. The accident was caused by a landslide in a railway cut caused by an ordinary rainfall. The trial court granted the following instruction: “The burden of proof is on the plaintiff to show that the defendant was negligent, and that its negligence caused the injury.” Counsel for plaintiff objected and asked the court' to modify this instruction by adding the words:' “But that the injury to the plaintiff upon the — 371 — car of the defendant, if the plaintiff was in the exercise of ordinary care, is prima facie evidence of the company’s' liability.” This modification was refused, and it was held error in the Supreme Court. This holding approves the rule that, while the burden is always upon the plaintiff to establish his right to recover by the preponderance of the evidence, in cases where the causes of the accident are peculiarly within the knowledge of the defendant, proof of the happening of the accident establishes a prima facie case which calls for rebuttal and explanation on the part of the defendant. It will be observed that the court was careful in the instructions in question to apply them to the facts of the present case, and not as an announcement of any general rule of law. As we had occasion to intimate in a recent case (Jaquette v. Capital Traction Co. present term, ante, 41) a different rule as to the shifting of proof applies in a case where, as in the case at bar, the plaintiff alleges in his declaration the specific facts upon which he relies to establish the negligence of the defendant. Where these facts are within the knowledge of the plaintiff, and they affirmatively appear in his declaration, he assumes the burden of establishing negligence as a basis for recovery. In such a case the plaintiff cannot establish a prima facie case calling for rebuttal or explanation by the defendant, by merely proving that he was a passenger and the occurrence of the accident by which he was injured. If this right at all existed in the present case, it has been waived.. The plaintiff has estopped himself by the terms of his declaration, to which defendant has taken issue, and which it was called upon to meet at the trial. Even the application of the doctrine of res ipsa loquitur does not relieve the plaintiff of the burden imposed upon him of establishing his case by the preponderance of the evidence. A clear statement of when this maxim of law applies is found in Salmond on Torts, p. 29, where the author says: “The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff ; because it may be that the true cause of the accident lies — 372 — solely -within the knowledge of the defendant, who caused it. The plaintiff can prove the accident, but he cannot prove how it happened, so as to show its origin in . the negligence of the defendant. This hardship is avoided to a considerable extent by the rule of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to.the jury; and it is for the defendant, if he can, to persuade the jury that the accident arose through no negligence of his. This maxim, res ipsa loquitur, applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant, that a reasonable jury could find, without further evidence, that it was so caused. ‘There must be reasonable evidence of negligence,’ it is said in Scott v. London & St. K. Docks Co. 3 Hurlst. & C. 601, ‘but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.’ There is not, indeed, even in these cases any legal presumption of negligence, so that the legal burden of disproving it lies on the defendant. But the plaintiff, by proving the accident, has adduced reasonable evidence, on which the jurors may, if they think fit, find a verdict for him.” With this clear statement before us, it follows that the happening of an accident to a passenger in such a manner that he cannot prove how it occurred—the true cause lying solely within the knowledge of the defendant, or the accident being such a one as would not' happen in the ordinary course of things under proper' management—-affords reasonable evidence that the áccident arose from want of care. If the defendant offers no explanation of the accident, then the want of care will be presumed, and, in the absence of satisfactory explanation, recovery may be had. Inasmuch as the instructions must have a direct relation to — 373 — the facts of the particular case, it becomes important at this point to consider certain undisputed facts in the present case. The record discloses that the plaintiff had sustained injuries many years prior to the date of the happening of the accident in question, which permanently crippled him. With this infirmity, which rendered him, to some extent at least, incapable of protecting himself in the event of an unusual motion of the cars, plaintiff, at the time of the accident, was standing on the front platform of the rear car, with his back in the direction the train was moving. He was leaning against the railing inclosing the platform, near the opening through which the conductor passes in going from one car to the other. He had taken this position in order that he might smoke; not because the car was crowded or because he could not secure a seat inside. While it was not contributory negligence per se for him to take that position, yet he assumed all the additional risks attendant upon the dangerous place selected. The high care which a railroad company is required to exercise for the safety of its passengers can be invoked only when the passenger exercises reasonable care in the selection of the best and safest accommodation afforded. While the railroad company is powerless to prevent a passenger from riding on the platform, and is required to exercise reasonable care for the safety of such passenger, the passenger who selects such a position, when ample accommodation is afforded inside of the car, assumes the risks attendant thereto in the customary and ordinary operation thereof. The rule as to passengers injured while riding on the platform is well expressed in Harbison v. Metropolitan R. Co. 9 App. D. C. 60, as follows: “The true rule surely must be that whilst a passenger may ride on the platform, step, or foot-board of a car, with the express or implied consent of the carrier, without incurring the imputation of contributory negligence as matter of law, he thereby, however, assumes the increased risk that may result therefrom in the ordinary course of things when the car is properly driven or managed. If hurt during the period of his exposure, he must, in order to recover, show affirmatively that the accident was caused, in — 374 — whole or in part, by some negligent act of the carrier. McAfee v. Huidekoper, 9 App. D. C. 36, 34 L.R.A. 720; Adams v. Washington & G. R. Co. 9 App. D. C. 26; Stewart v. Boston & P. R. Co. 146 Mass. 605, 16 N. E. 466.” It is well known that, in the ordinary and careful management of street cars, there is more or less.swaying or lurching in the motion of the cars, not only at curves, but at other points on the tracks. This made the position selected by the plaintiff, especially in his crippled condition, a dangerous one. The accident, therefore, is not such as could only happen in the ordinary course of things through lack of reasonable care on the part of the defendant or its employees. Here, the causes of the accident were entirely within the knowledge of the plaintiff. He assumed, by the terms of his declaration, the responsibility of alleging and proving them. The evidence of the defendant, tending to explain and disprove the charge of negligence on its part, was received in rebuttal. The necessity for, as well as the propriety of, the application of the rule of presumptions or res ipsa loquitur as to the establishment of a prima facie case is absent. There was nothing left for the jury to presume. Its duty was to decide the case solely upon the evidence as adduced at the trial, with the usual burden on the plaintiff of establishing his case by the preponderance of the evidence. If, in a case like the present, where the plaintiff has alleged facts relied upon as constituting negligence on the part of the defendant, and has affirmatively adduced proof in support thereof, and the defendant has given testimony tending to disprove such evidence, the defendant is to have imposed upon him the presumption of law that the mere happening of the accident creates an additional burden, he is met with something that is not proof or evidence of anything weighing against the testimony of competent witnesses. This presumption only arises in the absence of evidence of the circumstances out of which the negligence of defendant may be ascertained. As said by Mr. Justice Brewer in Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275: “In the case of a passenger the fact of an accident carries with it a presump — 375 — tion of negligence on the part of the carrier, a presumption which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against him, for there is prima facie a breach of his contract to carry safely.” It follows that, where there is some explanation to the contrary, the issue must he decided solely upon the evidence adduced. No error was committed by the court in instructing the jury that no presumption of negligence arises in this case from the happening of the accident, and that the burden of proof is upon the plaintiff to establish his case by the preponderance of the evidence. The seventh, eighth, and ninth assignments of error may be treated together. Defendant introduced as a witness an officer of the company, who testified that the following notice was printed on the car in question at the time of the accident, “Dangerous to Ride on the Platform.” The witness also testified to the particular part of the car on which the sign appeared. On cross-examination it was shown that the notice was placed there by authority of the defendant company. Counsel for plaintiff then sought to prove by way. of .cross-examination the attitude of the company, aside from the warning, with respect to passengers riding on the platform, and also to show whether the company had rules forbidding passengers to ride on the platforms, or had given instructions to its conductors as to the control of passengers riding thereon. We think this was not proper cross-examination. It was entirely immaterial what rules the company may have had respecting passengers riding on the platform, or what the duty of conductors may have been in relation thereto. It was not even intimated that, if such rules did exist, plaintiff had any knowledge of that fact. The mere existence or nonexistence of such rules could not affect the right of recovery by plaintiff. It was therefore immaterial whether the defendant had any rule, independent of the warning, as to passengers riding on the platform. Besides, the court instructed the jury fully as to the degree of diligence which the defendant was required to exercise toward the plaintiff. The — 376 — evidence, therefore, sought to be adduced was neither material nor proper cross-examination. The tenth assignment of error was abandoned on the argument of the case. The eleventh assignment relates to the refusal of the court to allow counsel for plaintiff to read to the jury extracts from a published opinion of this court in another case. The duty of the jury relates solely to passing upon the evidence as adduced on the trial, under proper instructions from the court as to the law applicable thereto. It is the peculiar function of the court to administer the law, a matter with which the jury has nothing whatever to do. Hence it would have been highly improper to have permitted counsel to have read an extract of a decision of this or any other court to the jury. Aftér a careful consideration of the record in this case and a review of the errors assigned, we fail to find any reversible error. The judgment is affirmed, with costs, and it is so ordered. Affirmed.