Connor v. Atchison, Topeka & Santa Fe Railway Co.

The plaintiff recovered a judgment for seven thousand five hundred dollars for injuries received by him while acting as a fireman upon a train operated from ■Searchlight to Goffs upon the railroad of the Atchison, Topeka & Santa Fe Railway. The injuries were caused by the giving away of an abutment of a bridge upon which the engine occupied by the plaintiff was crossing. The line was a branch line fifty-two miles in length and the train operated by the plaintiff and his eoemployees left Goffs for Searchlight in the morning, crossing the bridge in question about three miles after leaving Barnwell. The injuries occurred when they were returning over the same bridge in the evening. During the afternoon a cloudburst occurred in the mountains, causing a washout under the eastern abutment of the bridge about four feet wide and sufficiently deep to undermine the abutment. The tracks remained in perfect alignment and there was nothing to indicate to the approaching engineer and fireman that there had been any washout rendering the bridge unsafe, although there was some evidence that there had been rainfall in the vicinity. The train was proceeding about ten miles an hour. The negligence relied upon by the plaintiff is the failure . of the defendants to cause the track to be inspected after the cloudburst and before the train passed over the bridge.

The defendant John Barton Payne admits the injury to the bridge by the washout but denies that he had knowledge of the injury to the bridge or that he could have ascertained such injury by the exercise of proper or necessary care and denies that he negligently permitted the bridge to remain in an unsafe condition. The plaintiff offered evidence tending to show that certain employees of the defendant railroad director had been informed of the cloudburst but notwithstanding such information had failed to inspect the tracks.

The defendants appeal from the judgment and claim that in any event the judgment is erroneous as to the Eailway Company because of the fact that at the time of the accident the railroad was being operated by the director-general, John Barton Payne, the defendant. It is conceded by the respondent that the judgment against the Eailroad Company should be reversed for that reason. It is further claimed that the court erred in refusing to give certain instructions proposed by the defendant and that the verdict is excessive.

The plaintiff offered no instructions and the court gave none of its own motion and submitted the case upon some of the instructions requested by the defendants and refused others requested by the defendants. No instruction was given to the jury defining negligence or informing them that for the plaintiff to recover it must be shown that the

“In this behalf, you are instructed that the mere occurrence of the accident in this case or of the damage complained of, if you find that the accident and damage did occur, is no evidence of negligence on the part of the defendants or of any of their servants, agents or employees, and that the burden is on the plaintiff to show by a preponderance of the evidence that the defendants were guilty of negligence which proximately caused the damage. The plaintiff has the burden of proving by a preponderance of the evidence that the defendants were guilty of negligence.”

The question of whether or not the doctrine of res ipsa loquitur applies is to be determined by the decisions of the United States supreme court under the federal employers’ liability law (Fed. Stats. Ann., 2d ed., pp. 1208, 1339; U. S. Comp. Stats., secs. 8657, 8665), under which this action was brought. It is a matter of doubt whether this doctrine is applicable under the federal employers’ liability law (Roberts Injuries to Interstate Employees, sec. 22, p. 48; Richey’s Federal Employers’ Liability, 2d ed., sec. 163, p. 330; Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 [ 45 L. Ed. 361 , 21 Sup. Ct. Rep. 275 , see, also, Rose’s U. S. Notes]; Sweeney v. Erving, 228 U. S. 233 [Ann. Cas. 1917D, 905, 57 L. Ed. 815 , 33 Sup. Ct. Rep. 416 ] ; Southern Ry. Co. v. Bennett, 233 U. S. 80 [ 58 L. Ed. 860 , 34 Sup. Ct. Rep. 566 ] ; Chicago & N. W. Ry. Co. v. O’Brien, 132 Fed. 593 [ 67 C. C. A. 421 ]; Cincinnati etc. Ry. Co. v. South Fork Coal Co., 139 Fed. 528 [ 71

For the purpose of this decision, however, we will assume that the doctrine of res ipsa loquitur does apply to actions brought by the employees against interstate commerce carriers under the federal employers’ liability law. Under this doctrine the unexplained falling of the bridge in question would establish negligence prima facie.

In this case there was a complete explanation of the cause of the accident. The plaintiff himself in his pleading explains the cause of the accident, namely, the washing out of the support of the bridge. The evidence shows that this was the result of a sudden cloudburst and that the injury to the bridge had occurred but a short time before the accident. The complaint is predicated upon the theory that the defendants were negligent in failing to inspect the tracks after the cloudburst. [1] The general rule is that where the plaintiff in his complaint gives the explanation of the cause of the accident, that is to say, where the plaintiff, instead of relying upon a general allegation of negligence, sets out specifically the negligent acts or omissions complained of, the doctrine of res ipsa loquitur does not apply. (White v. Chicago G. W. R. Co., 246 Fed. 427 [ 158 C. C. A. 491 ] ; Midland Valley R. Co. v. Conner, 217 Fed. 956 [ 133 C. C. A. 628 ]; Lyon v. Chicago etc. Ry. Co., 50 Mont. 532 [ 148 Pac. 386 ]; West v. Hollady (Mo. App.), 196 S. W. 403 ; Texas Co. v. Charles Clarke & Co. (Tex. Civ. App.), 182 S. W. 351 .) [2] The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it, and that the plaintiff has no such knowledge and, therefore, is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. (See cases last cited.)

[3] In this case if the plaintiff had alleged negligence in general terms and had merely proved the happening of the accident, a prima facie case would have been established under the doctrine of res ipsa loquitur. But where the plaintiff went further and showed that the accident was caused by a cloudburst, the question of whether or not the

Under the pleadings and the evidence in support thereof the res ipsa loquitur doctrine did not apply. While there is nothing in the case indicating that the plaintiff relied upon the doctrine, either in the pleading or proof, it was nevertheless proper to instruct the jury that the doctrine did not apply and, therefore, the entire instruction under consideration defining negligence should have been given.

We think it clear under these circumstances that the instructions propounded by the defendants correctly stated the law, namely, that the mere happening of the accident under the circumstances of the case did not establish negligence upon the part of the defendants. The ease of O’Connor v. Mennie, 169 Cal. 217 [ 146 Pac. 674 ], relied upon by the respondent as establishing the doctrine of res ipsa loquitur in cases of injury received by an employee is not applicable, for the reason that in that case the court was dealing with

In view of the fact that our conclusion necessitates a reversal of the case, it is unnecessary to pass upon the other questions raised by the respondent, as in the event of a new trial the jury, no doubt, will be properly instructed.

Judgment reversed.

Shaw, C. J., Shurtleff, J., Lennon, J., Richards, J., pro tem., Sloane, J., and Lawlor, J., concurred.