Howser v. Cumberland & Pennsylvania Railroad

McSherry, J., dissented and delivered the following opinion, in which Fowler, J., concurred: I am constrained to dissent in this case, and I will state very briefly my reasons for the opinion I have formed. ¹⁵⁵ An accident happened and the plaintiff was inj ured. There was no relation of passenger and carrier existing between the plaintiff and the defendant, and there was no proof of any antecedent negligence on the part of the defendant, and no proof as to what caused the cross-ties to fall from the moving cars. Under these circumstances the court below, properly I think, took the case from the jury; but a majority of this court now reverse that ruling and hold that there was sufficient evidence for the jury to consider on the question of negligence. The plaintiff was not a passenger.

As I understand the repeated rulings of this Court it is the settled law in Maryland that when that relation does not exist no presumption of negligence can ever arise from the mere fact that an injury has been sustained. Something more must be shown. Where the defendant is under no contractual obligation to the plaintiff the mere occurrence of an accident resulting in injury furnishes no evidence of causative negligence on the part of the defendant. This principle is well illustrated in Hammock v. White, 11 C. B. N. S. 588.

It is incumbent, therefore, on the plaintiff in such cases not only to show an injury, but also to show that the defendant had been guilty of some negligence which produced that injury. There must not only be negligence, but, between that negligence and the injury complained of, there must be the relation of cause and effect. Negligence which produces no inj ury furnishes no right of action, and an inj ury not caused by any negligence cannot justify a recovery. Proof, then, of both the injury and the negligence which caused it must be given.

They are both indispensable constituents of the plaintiff’s case, and proof of the one cannot, in the absence of a contractual duty, establish the existence of the other, unless, in obedience to some unvarying physical law, you can say with unerring certainty that the given effect necessarily proceeded from a particular, exclusive cause. If, consistently with known laws, a particular effect could not exist, except as the result of a single cause, then, when the effect does ¹⁵⁶ exist, that single cause and no other must, in the nature of things, have produced it; and to that extent proof of the effect is proof of its cause, or of what its cause was. But if the effect could have resulted from any one of several causes, then, it' is obvious, that something more than the effect itself is required to be shown before it can be determined from which one of those several causes the given effect did in fact, in the particular instance, proceed. More especially is this so if, of these several causes, some are of such a nature that they impose no obligation on the defendant at all.

It seems tó me, then, to follow that where the injury could have happened in consequence of an accident pure and simple, unmixed with negligence, and for which and its consequences the defendant is not responsible, and where it could, under the proven'facts, equally have happened as the result of actionable negligence for which the defendant would be responsible, and there is no evidence to show that it did not happen or could not have happened, by sheer accident; or, that it did happen, or coidd only have happened i as the result of negligence; the plaintiff upon whom the burden! to show how it did happen always rests, would fail to sustain his case. And he would fail, because his proof in the case supposed would be as consistent with the hypothesis that the injury was caused by non-actionable' accident, as with the opposite theory that it was caused by actionable negligence. Now, in the case at bar, the only evidence is that as the freight train approached the plaintiff, who was walking towards it just outside the right of way, he thought he saw a jar on the track, as he expressed it, and the cross-ties fell off from the moving car when it was opposite to him, and struck and injured him. There is no evidence in the record that these ties had been improperly loaded on the car ; or to show when, where or by whom they were loaded; or how far they had been hauled; or to show that the car, upon which they had been loaded was out of repair; or that the track was not in proper and safe condition ; or that j ¹⁵⁷ the employees of the defendant were unskilful, careless or incompetent.

The naked fact that the ties fell off whilst the car was in motion is all the evidence, that was adduced. If it had been shown, or could rightly be assumed as a fact' established by known and admitted physical laws, that these ties could not have fallen off at that particular place, except because they had been negligently loaded, or because of some other negligence on the part of the defendant, I concede there would then have been sufficient evidence before the jury to justify them in concluding that there had been antecedent negligence which, through the falling of the ties, caused the injury; because then, the probability of the existence of a non-actionable accident as the cause of the injury would necessarily be prescinded. But with the numerous probabilities existing that the same result could have happened, though there had been no anterior negligence, the jury, if allowed to consider the case at all, would have been at liberty to speculate between these conflicting probabilities, none of which were excluded by the proven facts, and to base a verdict, at best, upon mere conjecture. The cases relied upon by the appellant are distinguishable from the one at bar.

Take, for example, the case of Byrne v. Boodle, 2 Hurl. & Colt. 726. There the barrel rolled out of the warehouse and fell upon a person rightfully passing along the public thoroughfare below, and though no evidence was offered to show what caused the barrel to roll out, the case was allowed to go to the jury upon the theory, I take it, that according to the fixed laws of dynamics it was physically impossible for the barrel to roll at all without the application of some force which must have been applied on the defendant’s premises, whilst those premises were so unguarded as to permit the barrel to roll out of the door. 1 Had the door not been left open, when it ought to have been closed, or at all events ought to have been protected by a servant or watchman, the barrel could not have rolled out as it did. Allowing the door to remain open or unguarded was an act of negligence. Now, negligence in ¹⁵⁸ the abstract is a nullity, but in the concrete it is either positive or negative; that is to say, it consists either in the doing of some act which ought not to have been done, or in the omission to do some act that ought to have been done.

In both instances it is the breach of a duty that is owed to another. In the barrel case the plain duty which the owner of the warehouse owed to the public, and to every individual who was entitled to use the public street, was to keep the door- so closed or guarded that a barrel could not roll out in the way it did roll out, no matter how it received the impetus; and the failure to do this was clearly an act of negligent omission which directly caused the injury. Had the omitted duty been observed it was physically impossible for the barrel to roll out as it did. But the case at bar is widely different.

It does not follow that because the logs fell off the car they were negligently put on; for, though properly loaded, they may have become displaced, without neglegence, by the jarring incident to a moving train; or, by other means, they might have fallen without involving a breach of duty toward any one, and, therefore, without involving antecedent negligence. To conclude that there was negligence because an injury happened is to assume, as proved, the very fact to be proved. It seems to me, then, that some evidence tending to show negligence ought to have been adduced, and that the Court below was right in withholding the case from the jury upon the failure of the plaintiff to adduce such additional'evidence. I am authorized by Judge Fowler to say that he concurs in these views.

Robert’s, J., delivered the opinion of the Court. This appeal brings before us for consideration a single question, yet one of interest and some importance, the determination of which is not entirely free from difficulty. In the fall of 1892, whilst the defendant was passing from the place of his employment to his home, he walked ovér a footpath on the land of William E. Walsh, in the city of Cumberland, which had been for twenty years used by various persons. This path extended along the roadbed of the appellee, but not upon its right of way.

As the plaintiff proceeded on his way to his home the defendant’s train was approaching on the outside track, the one nearest to him. Attached to the train was a gondola car loaded with railroad cross-ties ; when the car containing the cross-ties got opposite to where he was walking, a part of the ties slipped off of the car and about a half a dozen fell upon him and broke one of his legs in two places and otherwise injured him. In the testimony he says, “he supposed there was a jar on the track.” The case was tried before a jury, the Court, at the instance-of the appellee, instructing them “that upon the pleadings in the cause and the evidence given to the juiy the plaintiff was not entitled to recover.” If the defendant was entitled to recover, it was only because of the insufficiency of the proof offered by the plaintiff in that connection. We will now proceed to consider the instruction.

Whilst the general rule undoubtedly is, that the burden of proof that the injury resulted from negligence on the part of the defendant, is upon the plaintiff, yet in some cases, “the very nature of the action may, of itself, and through the presumption it carries, supply the requisite proof.” Wharton on Negligence, par. 421. Thus when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the accident was occasioned by the failure of the appellee to exercise proper caution which it readily could and should have done; and in the ¹⁴⁹ absence of satisfactory explanation on the part of the appellee, a presumption of negligence arises against it. In the case of Byrne v. Boadle, 2 Hurl. & C., 722, the plaintiff was walking in a public street past the defendant’s shop, when a barrel of flour fell upon him from a window above the shop and seriously injured him. The Court held that these facts constituted sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence.

Pollock, C. B., said: “There are many accidents from which no presumption of negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll