Chesapeake & Ohio Railway Co. v. Baker , 149 Va. 549 ( 1927 )

UPON A PETITION TO REHEAR.

Per Curiam.

The doctrine of res ipsa loquitur has no application to this case, for that doctrine is one of presumption to be resorted to only in the absence of positive evidence. It is shown beyond peradventure that the accident was due to a defective rail, more specifically to a transverse fissure. This rail was made by a standard rail maker, and had been subjected to all the tests which are. applied by those corporations engaged in that business. These tests revealed no defect, and there was nothing to put anyone on notice that any such latent trouble existed.

Taking the case as upon a demurrer to evidence, it may be conceded that some of the supporting ties were not in first class condition, but no more was required of the railway than that they should appear to be in condition to carry the load and bear the stress of good rails used in an ordinary way. We are of opinion that in no aspect of the case was there anything to indicate that these ties were not sufficient for this purpose. The railway had a right to assume that the rail -was a good one. If we start with this assumption, then the only burden placed upon it was to maintain a roadway sufficient to carry normal traffic upon good rails, and this burden is carried. When the ease is all in, the burden rested upon the plaintiff to prove negligence — that is, to prove a state of facts which would indicate the existence of danger from defective ties or-from some other source, and this burden has not been carried.

The petition to rehear is denied.