Moore v. Clagett

Mr. Justice Van Orsdel delivered the opinion of the Court: The total failure to prove the specific charge of negligence is conceded, but it is sought to sustain the judgment by invoking the rule of res ipsa loquitur. Undoubtedly, under a proper declaration, the rule may be invoked in a case of this sort, and the proof here adduced was sufficient to raise the necessary presunción of negligence. But the variance between the charge [415] and tlie proof forbids its application here. The rule of res ipsa loquitur arises in a case where the accident is such that, in the. ordinary course of events, it would not have happened except through the negligence of the defendant, and where the facts relating to the accident are peculiarly within his knowledge. In such a case, from the mere happening of the accident, a presumption of negligence arises, which, if not satisfactorily explained by the defendant, authorizes a recovery. Sweeney v. Erving, 228 U. S. 233, 240, 57 L. ed. 815, 818, 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D, 905. It is within the election of the plaintiff to avail himself of the rule by merely alleging and proving the circumstances of his presence, the accident, and the injuries sustained. He may elect, however, to specifically allege in detail the circumstances which led to the accident and upon which the charge of negligence is based. But, by electing to take this course, he assumes the burden of establishing the negligence in the manner charged, and the rule of res ipsa loquitur is thereby banished from the case. There is considerable conflict of authority as to the rule of pleading where the acts of negligence are such as to justify the pleader in invoking the rule of res ipsa loquitur. The weight of authority is that, when only specific acts of negligence are alleged, the proof must accord with the allegations, and the rule has no application. The reason for the rule is stated in Roscoe v. Metropolitan Street R. Co. 202 Mo. 576, 101 S. W. 32, as follows: “General allegations of negligence are permitted because plaintiff, not being familiar witb the instrumentalities used, has no knowledge of the specific negligent act or acts occasioning the injury, and for a like reason the rule of presumptive negligence is indulged. But, if plaintiff by his petition is shown to he sufficiently advised of the exact negligent acts causing, or contributing to, his injury, as to plead them specifically, as in this case, then the reason or the doctrine of presumptive negligence has vanished. If he knows the negligent act, and he admits that he does so know it by his petition, then he must prove it, and, if he recovers, it must be tipon the negligent acts pleaded and not otherwise.” To the [416] same effect are Chicago Union Traction Co. v. Leonard, 126 Ill. App. 189; Norton v. Galveston, H. & S. A. R. Co. — Tex. Civ. App. —, 108 S. W. 1044; Highland Ave. & B. R. Co. v. South, 112 Ala. 642, 20 So. 1003; Todd v. Missouri P. R. Co. 126 Mo. App. 684, 105 S. W. 671; Pierce v. Great Falls & C. R. Co. 22 Mont. 445, 56 Pac. 867, 6 Am. Neg. Rep. 109. Where the plaintiff in his' declaration alleges the specific acts of negligence relied upon for recovery, and does not allege negligence generally, we have held that he is confined in his proof to the acts .alleged. Sullivan v. Capital Traction Co. 34 App. D. C. 358; Jaquette v. Capital Traction Co. 34 App. D. C. 41, 25 L.R.A.(N.S.) 407. In such a case, he may not rely upon the presumption of negligence arising from the mere happening of the accident Pistorio v. Washington R. & Electric Co. 46 App. D. C. 479. Plaintiff, by the course pursued, charged one case and proved another. The variance is fatal. The correspondence between the charge and the proof is not such as will sustain the judgment. The judgment is reversed, with costs, and the case is remanded for a new trial. Beversed and remanded.