McDowell v. Norfolk Southern Railroad

CLARK, C. J., dissenting. Civil action. The action is to recover damages for destruction of plaintiff's house, and personal property therein, by fire, on 6 December, 1920, through the negligence of defendant in operating its train, and chiefly by reason of a defective spark-arrester on the defendant's engine, the house being situate just adjacent to defendant's right of way, in or near the town of Asheboro, N.C. Defendant denied that the house was set on fire by its train, or otherwise, and denied that the engine was in any way defective; and both sides offered large numbers of witnesses in support of their respective positions. On issues submitted, the jury rendered verdict as follows:

"1. Was the building and other property of plaintiff destroyed by fire by the negligence of defendant, as alleged in the complaint? Answer: `Yes.'

"2. If so, what damage is plaintiff entitled to recover of defendant? Answer: `$4,000.'"

Judgment on verdict, and defendant excepted and appealed, assigning errors. There were a large number of witnesses examined by both of the parties to the controversy, the testimony on the issue of liability being directed chiefly to the inquiry whether plaintiff's property was set on fire by defendant company or its agents, and if so, was this by reason of a defective spark-arrester on the engine drawing defendant's train at the time? And in reference thereto the court charged the jury as follows:

"There is a rule of law which says that whenever it is shown or found to be a fact, or admitted by a defendant, that a fire is actually caused and started from cinders or sparks from an engine, that then the law raises a presumption that it was due to negligence, and then the burden shifts to the defendant to show by the greater weight of the evidence that there was not negligence and that the fire did not escape from the engine and start another fire because of any negligence; and so, in this case, the burden would be upon the plaintiff to satisfy the jury that the fire actually started from the locomotive engine; and if the plaintiff has satisfied you of that fact by the greater weight of the evidence, then the burden would be upon the defendant to go forth and satisfy you by the greater weight of the evidence that there was no negligence; but unless plaintiff satisfies you first that the fire actually started from the cinders or sparks from the engine, then no presumption of negligence would arise from the mere starting of the fire from the engine, and the negligence proven would have to be proven by the plaintiff by the greater weight or preponderance of the evidence as well as the starting of the fire from the engine."

We find nothing in the further instructions of the court that makes any substantial change or modification in this position, the court, in the latter part of the charge, directing the jury that the evidence should be considered and the rights of the parties on the issue of liability determined under the rule as formerly given. This being true, we are of opinion that the charge as stated in erroneous and defendant, having duly excepted, is entitled to a new trial of the cause.

The question presented has been the subject of extended discussion in this Court, and there has been some variety of decision concerning it, but it is the settled ruling of the later and prevailing cases that where it is shown that the property of a claimant has been destroyed by fire communicated from defendant's train, that will make a prima facie case carrying the issue of liability to the jury, and of itself and without more is sufficient to justify a verdict as for a negligent wrong.

In numbers of the cases, particularly of the former time, it is said that the facts suggested raise a presumption of negligence, but, as shown in Overcash v. Electric Co., 144 N.C. 572-582, and other cases, it is but evidence and termed presumptive only in the sense as stated, that it permits and justifies an inference of liability if the jury are thereby satisfied that a negligent wrong is established, and it should never have the effect of changing the burden of the issue by putting on the defendant, as was done in the present instance, the burden of disproving the negligence charged, by the greater weight of the evidence.

Again, it is said in other decisions that when the facts suggested have been made to appear, it is the duty of the defendant to go forward with his proof; but this does not at all mean that, as a matter of law, defendant is required to offer proof in rebuttal, but only that if he fails to offer evidence in explanation of the conditions presented, he takes the risk of having a valid verdict rendered fixing him with liability.

The question referred to was very fully discussed by Associate JusticeAdams in the recent case of White v. Hines, 182 N.C. 276, injury from derailment of a train, and where, after a careful and discriminating review of a large number of the decisions on the subject, it was held to be the rule now prevailing with us:

"Where a prima facie case of negligence is made out, the jury will be justified in finding for the plaintiff thereon, the burden of the issue remaining on the plaintiff, it being for the jury to determine whether upon the entire evidence the plaintiff has established the defendant's negligence by the greater weight of the evidence, leaving it for the defendant to determine whether it will introduce further evidence or take the chance of an adverse verdict on the issue."

And, in the opinion, the learned judge, among other things, said: "Aprima facie case or evidence is that which is received or continues until the contrary is shown. It is such as in judgment of law is sufficient to establish the fact, and if not rebutted, remains sufficient for the purpose. Troy v. Evans, 97 U.S. 3; Kelly v. Johnson, 6 Pet., U.S., 622; Jones on Evidence, sec. 8; S. v. Floyd, 35 N.C. 385; S. v. Wilkerson,supra. Even if the prima facie case be called a presumption of negligence, the presumption still is only evidence of negligence for the consideration of the jury. Overcash v. Electric Co., supra; Shepard v. Telegraph Co.,Supra; Mumpower v. R. R., supra. In some of our decisions the expressionsres ipsa loquitur, prima facie evidence, prima facie case, and presumption of negligence have been used as practically synonymous. As thus used, each expression signifies nothing more than evidence to be considered by the jury. Womble v. Grocery Co., supra; Stewart v. Carpet Co., supra; Ross v.Cotton Mills, supra; Shepard v. Telegraph Co., supra; Mumpower v. R. R.,supra; Perry v. Mfg. Co., 176 N.C. 69. When the plaintiff proves, for instance, that he has been injured by the fall of an elevator, or by a derailment, or by the collision of trains or other like cause, the doctrine of res ipsa loquitur applies, and the plaintiff has a prima facie case of negligence for the consideration of the jury. Such prima facie case does not necessarily establish the plaintiff's right to recover. Certainly, it does not change the burden of the issue. The defendant may offer evidence or decline to do so at the peril of an adverse verdict. If the defendant offers evidence the plaintiff may introduce additional evidence, and the jury will then say whether, upon all the evidence, the plaintiff has satisfied them by its preponderance that he was injured by the negligence of the defendant."

And both the statement and the conclusion reached are fully supported by well-considered authorities of this Court dealing directly with the question. Page v. Mfg. Co., 180 N.C. 330-334, etc.; S. v. Wilkerson, 164 N.C. 432; Brock v. Ins. Co., 156 N.C. 112; Cox v. R. R., 149 N.C. 117 (a case of putting out fire); Winslow v. Hardwood Co., 147 N.C. 275;Overcash v. R. R., 144 N.C. 572; Stewart v. Carpet Co., 138 N.C. 60;Womble v. Grocery Co., 135 N.C. 474. And the Supreme Court of the United States has approved and upheld this view of the matter. See Sweeny v.Erwin, 228 U.S. 233, and authorities cited.

In Page v. Mfg. Co., a case of setting fire to property, it was held among other rulings:

"Where, in an action to recover damages of a railroad for the negligence of the defendant in burning over plaintiff's lands, there is evidence that the injury was caused by sparks from the defendant's passing locomotive which started the conflagration, a prima facie case is established under the doctrine of res ipsa loquitur, and the burden of the issue remains with the plaintiff, the prima facie case being only sufficient evidence to carry the case to the jury and to sustain a verdict in the plaintiff's favor. An instruction to the jury which places upon the defendant the burden of satisfying the jury by a preponderance of the evidence that it was not negligent is error.

"It is reversible error for the trial judge to instruct the jury, in effect, that the burden of the issue did not remain with the plaintiff, in his action against a railroad company for negligently setting out fire from its passing locomotive to the injury of his land, where applying the doctrine of res ipsa loquitur."

In Cox v. R. R., 149 N.C. 117, the decision is expressed in the headnote as follows: "In an action to recover damages to plaintiff's property alleged to have been negligently caused by sparks emitted from defendant's passing engine, when there was evidence tending to show negligence: Held, (1) It was error in the trial judge to charge the jury, in effect, that if they found the evidence to be true there would be a presumption in law of defendant's negligence, and the burden of proof would be upon defendant to show to the contrary. (2) Plaintiff's evidence made out a prima facie case to the extent only of carrying the case to the jury to find whether or not the injury was caused by defendant's negligence. (3) The burden of the issue does not shift from plaintiff, while the burden of proof may do so. (Winslow v. Hardwood Co.,147 N.C. 275, cited and approved.)

And in the United States case of Sweeney v. Erwin it was held: (1) Where the rule of res ipsa loquitur applies it does not have the effect of shifting the burden of proof. (2) Res ipsa loquitur means that the facts of the occurrence warrant an inference of negligence, not that they compel such an inference, nor does res ipsa loquitur convert the defendant's general issue into an affirmative defense. (3) Even when the rule of resipsa loquitur applies, it is for the jury to determine whether the preponderance is with the plaintiff.

In White v. Hines a verdict and judgment for plaintiff was up held on the ground that, construing the charge as a whole, it was not clearly made to appear that there was reversible error. It is possible that the charge in that case received an interpretation by the Court too favorable to the plaintiff; but, however that may be, there is no doubt of the principle there announced, and fully supported by the other cases cited, that the burden of the issue never shifts to the defendant, and that it is reversible error for the trial court to instruct the jury that, on a primafacie case being made to appear, the defendant has the burden of disproving negligence by the greater weight of the evidence.

In the present case, and under the principle stated, the charge of the Court having placed this burden upon the defendant, and without qualification, the same is erroneous and defendant's exception thereto must be sustained.

And we may not approve of the suggestion that the exception is not of sufficient importance to justify an interference with an extended and costly trial of this kind, or that the jury should be allowed to settle the question at issue without any rule to guide them in their deliberations. This trial by jury has been the accepted and approved method of determining questions of disputed fact among English-speaking peoples for more than 900 years, and while particular verdicts have been at times severely criticized, the proposition to make a change to any other method has never made any headway, but the principle has grown and strengthened by time, and its integrity is guaranteed in the Constitution of both State and nation; that of the State being especially impressive, Article I, section 19, providing "that in all controversies at law respecting property the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable." And one of the chiefest features of such a trial as contemplated in these instruments is that the evidence shall be received and weighed in accordance with established rules which have been found by time and experience to make for the ascertainment of truth and the maintenance of right, and a clear violation of such rules can never be regarded as of slight importance.

Speaking to this question in Hosiery Co. v. Express Co.,184 N.C. 478-480, Stacy, J., said: "The rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests, and therefore it should be carefully guarded and rigidly enforced."

In S. v. Parks, 25 N.C. 296, Gaston, J., said: "It is essential to the uniform administration of justice, which is one of the best securities for its faithful administration, that the rules of evidence should be steadily observed."

And Chief Justice John Marshall, in Mima Queen v. Hepburn: "It was very justly said by a great judge that all questions upon the rules of evidence are of vast importance to all orders and degrees of men. Our lives, our liberties and our property are all concerned in the support of these rules which have been matured by the wisdom of ages and are now revered from their antiquity and the good sense in which they are founded.'"

Nor should it be for a moment considered that the jury should be left to determine these vital rights between man and man without any authority to instruct or guide them in their deliberations. Such a course would turn this ancient and accepted mode of trial from an authoritative and orderly judicial procedure to a mere arbitration in pais, with all the uncertainties and inconsistencies that such a method would involve. We are gratified to believe that no such demoralizing proposition is likely to prevail in this jurisdiction now or at any future time.

For the reasons heretofore stated we are of opinion that defendant is entitled to a new trial of the cause, and it is so ordered.

New trial.