Kight v. Metropolitan Railroad , 21 App. D.C. 494 ( 1903 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The plaintiff as appellant to this court has assigned three errors:

1. That the court erred in directing a verdict for the defendant.

2. That it erred in refusing to allow the witness Ager to testify as to what would cause such a flash as was described in the evidence; and,

3. That it erred in refusing to allow the plaintiff’s garments worn at the time of the accident, to be introduced in evidence.

1. With respect to the first assignment of error, there are several questions involved. If the accident to the car by blowing out the fuse, causing a loud report and flame to proceed therefrom, was caused by any negligent act, omission of duty, or unskillful management of the electrical appliances of the car, on the part of the defendant or its employees, the act of the plaintiff, even supposing that she jumped from the car, would not preclude her the right to recover for the injuries she received. Whether the injury was caused by jumping from the car, or was caused by having been pushed therefrom, under the circumstances stated by the witnesses, would not constitute contributory negligence on her part. But the question is, whether there was evidence sufficient to require the case to be submitted to the jury, on the question of negligence, omission of duty, or unskillfulness in the control and management of the car, by the employees of the defendant, as the cause of the apparent danger to the passengers.

The plaintiff contends that the general principle or rule of presumption, that is sometimes applied in actions to recover for injuries received by alleged negligence, of res ipsa loquitur, applies; and that the nature of the accident itself furnishes ground for the inference that there was negligence or unskillfulness; or otherwise the accident would not have occurred. That rule of presumption is always applied with caution, and only where there is an absence of positive proof of any definite act of negligence, or want of skill, though the accident itself is of an unusual and extraordinary character, and one that would not likely occur without such cause. In such case, the presumption arising, the onus of explanation is imposed upon the defendant. But in this case, there are circumstances, apart from the nature of the accident itself, that would indicate that there was negligence or want of skill in the control and management of the car, that was the direct cause of the accident: That the current was too suddenly fed to the motor, and thus the explosion and flame were produced.

In the testimony for the plaintiff, the witness Landon speaks of noticing the cars moving up to the crossing at Fourteenth and H streets, and that they were slowed down. “ That the motorman on the green car rang two bells for the crossing, and as he did so he turned his controller on almost full, his wheels buzzed round, but did not seem to have any effect. Just as he turned on the controller there was an explosion. The car was pretty full, and everybody jumped up in a panic-stricken way. I saw a couple of ladies fall ■and it seemed as though they had been trampled on by the rest of the crowd.” The expert witness Heating examined for the defendant, says: “ The effect of turning on the full force of the current swldenly, if there was a car pushing a heavy load on a hill, would be to melt out the fuse. That would result in an explosion, and flame not more than 18 inches long; not that long on a heavy pull, because it would melt out; not blow out; but if it blew out it would have a flash not more than 18 inches long.” And so Fuller, another ■skilled witness examined for the defendant, says: “ A motorman can cause an overloading of his motor by feeding his ■current too fast. This would close the fuse, and if there be any weak spots in the insulation it might cause a ground or short circuit. Where a motorman turns on his full current at the start, with a heavy load on a hill, if there is a defective spot in his motor it might make a short circuit or ground.” And Bayne, the motorman on the car when the accident occurred, and a witness for the defendant, says: “We had stopped after we crossed New York avenue, and had started up to go north towards H street, and I was feeding up the current: I had fed it to one motor and that wasn’t enough; I moved it from the fifth to the sixth point, and just then the fuse blew, the eiirrent stopped and I could feel the car give. I didn’t hoar any explosion; didn’t see any blaze.”

This proof, we third?:, though not definite and direct to the point of establishing negligence or unskillfulness on the part of the employees of the defendant, yet it presented circumstances reflecting upon those questions, and which tended to show a want of care and diligence, that ought to have been considered by the jury. It was their province to draw the proper conclusion from such circumstances, and not that ■of the court. It is, however, the duty of the court to keep the jury within the proper bounds of their province, and not to open a field to their mere speculation. This can only be done by careful and well-defined instructions, as to the rights of the parties concerned. In a case like the present, the jury must be made to understand that a common carrier, such as a street railway, is not an insurer of the safety of its passengers; but it is, and properly should be, bound to use its utmost skill and vigilance to guard against the possibility of accident from the condition of its road and of the machinery and appliances used in the transportation of its passengers. ' Stierle v. Union Railway Co., 156 N. Y. 70. The company, however, is not liable for an injury to a passenger which the exercise of reasonable foresight would not have anticipated, or due care have' avoided; or, in other words, if the accident is not the reasonable, natural, and probable result of the situation, which ought to have been foreseen by the company in the exercise of that degree of care exacted from a carrier of passengers, the company is not liable. Ayers v. Rochester Ry. Co., 156 N. Y. 104; Reem v. St. Paul City Co. (Minn. 1899), 80 N. W. Rep. 638; Joyce on Elec. Law, Sec. 529. The test of care or skill required in the methods, and use and operation of machinery and appliances, is the ordinary usage and methods that obtain and are observed in the particular business, as practiced by the average prudent man, professing knowledge of the business; and railroad companies form no exception to this rule. If, having exercised such skill and prudence in the performance of its business, and in the course of such performance, unforeseen accidents occur, negligence or unskillfulness cannot be imputed to it. Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. St. 552.

We think therefore there was error in directing the verdict to be rendered for the defendant.

2. In regard to the second assignment of error, little need be said. We perceive no reversible ground of error in the ruling of the court excluding the proffered testimony of the witness Ager. Though the witness said that he knew what caused the flashes when the fuse blew out or exploded, he was not present when the accident occurred, and could only give his opinion as to what did cause the flashes testified to by other witnesses. The witness was not an electrician and was not shown to have special knowledge of electric mechanism; but be was asked to state wbat would cause sucb a flash as bad been described in tbe testimony. Tbis tbe court refused to admit, on two grounds: First, tbat tbe witness bad not qualified as an expert; and second, tbat tbe testimony should have been offered in chief, instead of being offered, as it was, in rebuttal. Tbe question was properly disallowed for tbe reasons stated by tbe court. Tbe matter was largely in tbe discretion of tbe trial court, and therefore only subject to review on appeal where palpable error is shown to have been committed in excluding tbe evidence. Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Spring Co. v. Edgar, 99 U. S. 645; Perkins v. Stickney, 132 Mass. 211; Sorg v. Congregation, 63 Pa. St. 156.

3. The third and last assignment of error is immaterial. Tbe action is not for damage done tbe clothes of tbe plaintiff, and their exhibition to tbe jury could serve no lawful purpose. Tbe court was right in rejecting tbe offer.

For tbe error in directing tbe verdict for tbe defendant tbe judgment of tbe court below must be reversed; and it is so ordered. Judgment reversed.