# Galbraith v. Busch

> New York Court of Appeals · April 1, 1935 · 267 N.Y. 230

URL: https://www.frixlaw.com/law-library/cases/3599908

## Case

- **Full name:** Mary A. Galbraith, Respondent, v. Paul Busch Et Al., Appellants
- **Court:** New York Court of Appeals
- **Decided:** April 1, 1935
- **Citations:** 267 N.Y. 230; 196 N.E. 36; 1935 N.Y. LEXIS 1211
- **Precedential status:** Published
- **Opinion:** Dissent by Crane
- **Judges:** Lehman, Crane
- **Cited by:** 161 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3599908

## Opinion text

Crane, Ch. J.
(dissenting). The plaintiff, Mary A. Galbraith, was injured in an automobile accident on the 27th day of May, 1932, and she has sued the driver of the car in which she was riding, Paul Busch, and the owner, Sarah M. Galbraith, her daughter, to recover damages for injuries. Paul Busch, the driver, and the owner of the car were sitting in the front seat; the plaintiff and her grandson were seated in the back seat.
The occupants were proceeding from Poughkeepsie to the Adirondaeks over the Albany Post Road. The place of the accident was about twelve miles north of Hudson, where the road consists of three strips of level concrete which, on the day in question, were perfectly dry. It was a clear morning, with little traffic on the highway. The car suddenly left the highway, tearing up twelve or more feet of fencing, crashed into a tree in an adjoining lot, a portion of which tree passed through the roof of the car. The speed at which it must have been going may be gathered from this incident.
Upon the trial of this case, after the proof of these facts, the defendant Sarah M. Galbraith did an unusual thing. She failed to call the driver, Paul Busch. Neither did she explain who or what he was. He did not testify himself, and the codefendant did not state any reason for not calling him nor show by any evidence that he could not be obtained as a witness. That he was her driver and, on the day of the occurrence, under her control and authority is self-evident. There is only one conclusion to be drawn from the failure of this defendant to call him
*237
or to account for his absence, and that is that his testimony would not be favorable to her side of the case.
We must bear in mind at all times, especially when we come to review the cases, that the defendant knew what caused this accident, or else could have told us, or the jury, that she did not know. Busch knew what caused the accident or else he did not know. Both these persons have kept their mouths closed tight and have refused to reveal either their knowledge or their ignorance. This is a circumstance, a very material circumstance, which raises presumptions in this case.
The judge charged the jury that the mere fact the car left the highway and hit the tree raised a presumption of negligence upon the part of the driver, standing alone and unexplained, and constitutes
prima facie
evidence of the negligence of Busch, and he said:
“
It then became the duty of the defendant Busch and of Miss Galbraith 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.” Again he said,
“
Of course, speed alone is not the only reason an automobile may leave a highway. A bee, flying into a window of a car, alighting upon the driver’s face, and his frantic effort to get rid of the bee might result in a car trying to climb a telegraph pole, and there are many other reasons which suggest themselves to you as to how it might be that a car might leave the highway. Some part of the mechanism might go wrong. Busch was driving the car; presumably he knows why the automobile left the highway; he is silent; he does not tell us why it did, and so we come back to the presumption of negligence to which I have already referred.” And the judge later instructed the jury that it was for them to determine whether Busch was negligent, and
“
if, on the other hand, you find that Busch was not negligent,
*
* * then your verdict will be for both defendants.”
I can find nothing wrong with this case. It proceeded
*238
according to law, all the authorities and the inferences which the human mind naturally draws from the circumstances, The words “
res ipso loquitur
” do not conceal a mystery. There is no doctrine or rule of law suggested or intimated by the words; neither is there any hard and fast principle embodied in their meaning. We use these words in the same way that we say in plain English,
“
The circumstances of the case unexplained justify the inference of negligence.” Perhaps much confusion in legal thinking would be avoided if we used the English instead of the Latin terminology, for there seems to be a shying away from the Latin phrase as though it was a thing of danger, to be applied exceptionally. Not so. We apply it frequently in all manner of cases where facts and circumstances call upon others to speak, and they keep silent. This court said in
Slater
v.
Barnes
( 241 N. Y. 284 );
“
That rule [res
ipso
loquitur] amongst other things is predicated upon the condition that the agency which has produced an injury is within the exclusive possession, control and oversight of the person charged with negligence whence, legitimately, flows the inference that if there is any explanation of the accident consistent with freedom from negligence, he ought to be able to give that explanation, and if he does not give it, a presumption arises against him. The reason for and common sense of this rule under such conditions is obvious. It frequently happens in the law that if a person fails to explain that of which apparently he has knowledge the presumption goes agahist him ” (p, 287).
Judge Pound, writing for the court in
Plumb
v.
Richmond Light
&
Railroad Co.
( 233 N. Y. 285 ), says:
“ Res ipso loquitur
is a loose but much-used phrase of limited application which is a symbol for the rule that the fact of the occurrence of an injury and the surrounding circumstances may permit an inference of culpability on the part of the defendant, make out plaintiff’s
prima fade
case, and present a question of fact for the defendant to
*239
meet with an explanation. The term
‘
surrounding circumstances ’ in this connection refers not to circumstances directly tending to show lack of care in handling, such as excessive speed, lack of proper control of the car and the like, which tend in themselves to establish plaintiff’s case, but only to mere neutral circumstances of control and management by the defendant which may, when explained, appear to be entirely consistent with due care. Shifting the burden of explanation or of going on with the case does not shift the burden of proof. If a satisfactory explanation is offered by the defendant, the plaintiff must rebut it by evidence of negligence or lose his case. On the whole case there must be a preponderance of evidence in favor of plaintiff’s contention ” (p. 288).
The defendants here knowing the facts remain silent; they do not even say that the cause of the accident is unknown to them. This is not a case where negligence is presumed or liability predicated upon the mere happening of the accident, or the single fact that the car left the road. We have the circumstances and surroundings which make Busch’s action and the defendant’s attitude extremely suspicious, so that from their silence it may fairly be presumed that the cause of the accident was Busch’s negligence in operating the car. This evidence presented a question for the jury to determine, and they were justified in finding such negligence.
All the authorities, where similar facts existed, have ruled the same way. The first department of the Appellate Division, in
Bennett
v.
Edward
( 239 App. Div. 157 ), had before it the case of an automobile suddenly, and for a reason unknown to the plaintiff, running into a ditch and turning over. The evidence at the trial afforded no explanation whatever as to the cause of the accident, and the court there said: “ We are of the opinion that, under the proof and circumstances, the burden rested upon the defendant to explain the cause of the accident and, if
*240
possible, to overcome the presumption of negligence which resulted from the occurrence of the accident. We think the court should have applied the doctrine of
res ipso
loquitur, and that error was committed in dismissing the complaint without requiring the defendant to go ahead with proof excusing the defendant from any negligence ” (p. 160). Justice Finch, now a judge in this court, concurred in this opinion.
The same rule, call it
res ipso loquitur
if you will, or the rule of reasonable inferences, has been followed in other jurisdictions where like facts have been involved.
(Chaisson
v.
Williams,
130 Me. 341 ;
Baker
v.
Baker,
220 Ala. 201 ;
Nicol
v.
Geitler,
188 Minn. 69 ;
Barger
v.
Chelpon,
60 S. D. 66;
Knox
v.
Simmerman,
301 Penn. St. 1;
Morris
v.
Morris,
84 Cal. App. 599 ;
Queirolo v. Pacific G. & El. Co.,
114 Cal. App. 610 ;
Mackenzie
v.
Oakley,
94 N. J. L. 66;
Masten
v.
Cousins,
216 Ill. App. 268 ;
Scoll
v.
London & St. Katharine Docks Co.,
3 H. & C. 596;
McGowan
v.
Stott,
99 L. J. [K. B.] 357;
Long
v.
McLaughlin,
3 Dom. L. R. 918 [New Brunswick, 1926].)
Cases which apparently hold the contrary doctrine have been those where the States require proof of gross negligence or reckless conduct, or else have dealt with facts where the defendant has called evidence to show and explain the non-negligent .cause of the accident; in other words, has overcome the presumption. (See
Klein
v.
Beeten,
169 Wis. 385 ;
Giddings
v.
Honan,
114 Conn. 473 ;
Bobich
v.
Rogers,
258 Mich. 343 ;
Riley
v.
Wooden,
310 Penn. St. 449.)
Professor Wigmore, in his work on Evidence (Yol. 5, § 2509, p. 498), in discussing the rule of “
res ipso loquitur,”
says: “It may'be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”
*241
Again, Professor Harper, in his Law of Torts (§ 77, p. 183), says:
“
The principle which the courts have developed in these cases is that when certain types of harms occur under circumstances which, from common experience, strongly suggest negligence and when the agency or instrumentality which occasioned the harm is under the exclusive control and management of the defendant so that he is in a better position to prove his innocence than the plaintiff is to prove his negligence, there exists a
res ipso loquitur
case.”
We have had of late an increasing number of negligence cases wherein the litigation is between the members of the family; mother suing daughter, as in this case, children the father, or wife the husband ■— actions which never would have been brought were it not for the fact that the defendant was covered by insurance, so that the loss falls upon the casualty company. The difficulty in properly presenting a defense may, therefore, be due somewhat to the fact that the actual defendant is not the one whose name appears in the action, and that by reason of a family relationship between the parties and their joint interest in the recovery, there is difficulty in procuring evidence for the defense.
Other States have met this situation, such as Connecticut, Massachusetts and Georgia by enacting laws whereby the host is liable to the guest only where gross negligence is found. In this State we still adhere to the common law, that a defendant is liable to his automobile guest for failure to exercise reasonable care. The rules of evidence whereby this common law liability is established, however, must not be weakened by the incongruity of members of a family suing each other for negligence.
The judgment below should be affirmed, with costs.
O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur with Lehman, J.; Crane, Ch. J., dissents in opinion.
Judgments reversed, etc.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3599908. Public record. Not legal advice.