Galbraith v. Busch

The plaintiff was injured while a guest in an automobile owned by her daughter, the defendant Sarah M. Galbraith, and operated under her direction by the defendant Busch. The automobile suddenly swerved from the highway and crashed into a tree. The evidence fails to show any cause for the sudden swerve. The weather was clear, the highway was in good condition, and there was little traffic upon it. The trial judge ruled that the mere fact that the car left the highway under these circumstances raised a presumption of negligence on the part of the driver and that it was the duty of the defendants "to go forward with their evidence and show why the car left the highway, why it rammed the tree, and that it did so without any fault or negligence upon the part of Busch." The defendant failed to give such evidence. The cause of the accident remains undisclosed and unexplained. The question now presented is whether without such explanation the circumstances under which the accident occurred raised an inference or presumption that it was due to the negligence of the driver.

It may be conceded that the defendants, by reason of their control and management of the automobile, are in a better position to furnish an explanation of the cause of the accident than the plaintiff. Failure to give such explanation, it is said, is suspicious and requires the conclusion that their testimony would not be favorable to them. Certainly their silence is not suspicious if they were not called upon to speak and no inference unfavorable to them can be drawn from their silence if the plaintiff's proof is insufficient to show any negligence on their part. In a negligence action the plaintiff always has the burden of showing failure by the defendant of some duty owing to the plaintiff. That burden can never be shifted to the defendant. Where the plaintiff's evidence is sufficient to justify or require an inference of negligence, then failure of the defendant to rebut such inference by affirmative evidence may result in a judgment against the defendant. Where a defendant under such circumstances fails to produce relevant evidence within his control, inference may be permissible that such evidence would not be favorable to him. None the less the duty upon the defendant of going forward and producing evidence to rebut an inference or presumption of negligence cannot arise unless the evidence of the plaintiff justifies such inference or presumption. These general principles are firmly imbedded in our law. In their practical application the doctrine known as "resipsa loquitur" plays a part, but that doctrine can be invoked only where, as the chief judge points out: "The circumstances of the case unexplained justify the inference of negligence."

The problem in each case is whether the circumstances unexplained do justify an inference of negligence. Ordinarily, circumstantial evidence is insufficient where the circumstances are consistent with freedom from wrong. In the administration of the law arbitrary rules cannot be substituted for logically probative evidence. The doctrine of res ipsaloquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon incomplete evidence where complete evidence is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available. So where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant. (Slater v.Barnes, 241 N.Y. 284. That doctrine (res ipsa loquitur) has been applied here because the evidence shows that the automobile in which the plaintiff was a guest was in the exclusive possession and control of the defendant. The courts below in applying that doctrine have failed to consider whether the circumstances, though unexplained, show that ordinarily the accident would not have occurred without neglect of duty owed by the defendants or either of them to the plaintiff.

It is common knowledge that a sudden swerve of an automobile may be due to many causes. We may assume that an automobile nevertheless does not suddenly swerve under ordinary conditions where it is carefully operated and carefully maintained. We may assume further that here the evidence shows that at the time of the accident there were no extraordinary conditions in the road which would account for the accident, and that an inference would be justified that the cause must be found in the operation of the machine or in some defect in the automobile. We may even assume that these circumstances, unexplained, justify an inference that the automobile was not carefully operated or was not carefully maintained. If the defendants owed a duty to the plaintiff to exercise reasonable care both in the operation and maintenance or repair of the automobile, then the burden of explaining the cause of the accident and showing that it occurred without neglect of duty may, perhaps, logically and properly be shifted to the defendants. At least there are many decisions which point that way.

Here the plaintiff was only a guest in the car. She assumed the risk of any defect in the automobile which was not known to the defendants. They assumed the duty to exercise reasonable care for her protection in the operation of the automobile. They were under no duty to exercise care to discover and repair defects not known to them. (Higgins v. Mason, 255 N.Y. 104.) The evidence, though unexplained, cannot possibly lead to an inference that the accident was due to lack of care in the operation of the automobile, for the probability that it occurred from a break in its mechanism is at least equally great. All that the evidence shows is that the accident may have occurred from any one of many causes, including, perhaps, negligence in operation. If knowledge of the actual cause is confined to the defendants, then the plaintiff cannot prove any cause of action without calling them as witnesses. None the less, the plaintiff fails to make out a prima facie case without such proof and cannot place upon the defendants the burden of exculpating themselves from the charge of neglect of duty until evidence showing prima facie that there is such negligence has been presented.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to the appellant to abide the event.