New York, Chicago & St. Louis Railroad v. Henderson

Concurring Opinion

Emmert, C. J.

The Indiana cases on res ipsa loquitur generally support the definition given in Pittsburgh, etc. R. Co. v. Arnott, Admx. (1920), 189 Ind. 350, 368 , 126 N. E. 13 , which is as follows:

*479 “It is well settled that, when the instrumentalities which produce an accident are under the exclusive charge of the defendant or his servants, and when the accident is such as does not occur in the ordinary course of events if those in charge use proper care, proof of the accident is sufficient to create a prima facie case of negligence, which will prevail unless it is met by evidence to show that the accident could not have been avoided by due care on the part of the defendant.”

See Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 599, 600 , 106 N. E. 365 ; Wass v. Suter (1949), 119 Ind. App. 655, 659 , 84 N. E. 2d 734 . 1

It is a rule of evidence. Fleming v. Pyramid Coal Corp. (1951), 122 Ind. App. 41, 44 , 100 N. E. 2d 835 ; Wass v. Suter (1949), 119 Ind. App. 655 , 84 N. E. 2d 734 , supra. It does not dispense with the rule that he who alleges negligence must prove it by a fair preponderance of the evidence. Kickels v. Fein (1937), 104 *480 Ind. App. 606, 615 , 10 N. E. 2d 297 ; 65 C. J. S. 993, 994, §220(3). It does not create a prima facie presumption of negligence. “A presumption is a rule which the law makes upon a given state of facts; an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven.” Ensel v. Lumber Insurance Company of New York (1913), 88 Ohio St. 269 , 282, 102 N. E. 955 . When the proponent has introduced evidence of facts bringing the rule into operation, the rule says the facts are prima facie evidence of negligence; he has made a case sufficient to go to the jury, and the jury is entitled to draw the inference that the opponent was guilty of negligence. The cases generally hold that although the burden of proof has not shifted, the duty of coming forward with evidence to explain what happened lies with the opponent.

If the plaintiff’s facts make out a prima facie case of negligence under res ipsa loquitur, I am unable to see how the rule can vanish from the case when the defendant offers testimony in explanation of the accident, as some of the cases seem to indicate. The facts that constitute prima facie evidence of negligence at the end of the plaintiff’s evidence in chief are still prima facie evidence after the defendant introduces his evidence in explanation of the accident. Generally, when the cause is being tried by a jury, the court is not permitted to judge the credibility of the witnesses and weigh the evidence and hold as a matter of law that the defendant’s testimony is true, and but one inference could be drawn therefrom, to-wit: the defendant was not guilty of negligence. Negligence only becomes a question of law when the facts are not in dispute, and no reasonable man could find the defendant has *481 been guilty of negligence. The same principle applies to contributory negligence. Gamble v. Lewis (1949), 227 Ind. 455 , 85 N. E. 2d 629 . But in a case where the rule of res ipsa loquitur is properly invoked, the defendant is only required to offer evidence balancing that offered by the plaintiff; he is not required to prove by preponderance of the evidence he was not guilty of negligence.

I believe Worster v. Caylor (1953), 231 Ind. 625 , 110 N. E. 2d 337 , was correctly decided upon the facts, and it should not be overruled. There the plaintiff as a part of the case in chief introduced the testimony of the defendant surgeon who performed the operation. The plaintiff undertook the burden of proving all the facts of the injury so there was no necessity to invoke the rule of res ipsa loquitur. The plaintiff offered evidence to prove what happened by the witness who knew more about what happened than anyone else. When the plaintiff made the defendant his own witness and had him testify in full about the operation, he cannot then be heard to say that the duty of coming forward with the evidence rested upon the defendant. In fact, there was no evidence left to come forward with. It matters not that the defendant doctor was a hostile witness. The plaintiff did not have to present him as his witness, and then he would have been entitled to the benefit of the rule. By overruling Worster v. Caylor, supra, this court gets itself in the impossible position of holding that a plaintiff can introduce as his witnesses all those who know anything about what may have caused the accident so that there is no evidence left for the defendant to come forward with, and yet the defendant would still have the duty of coming forward with evidence to explain the accident. The rule in Worster v. Caylor, supra, was sound upon *482 logic and principle, and precedent should not be overruled when the reason still exists for the rule and principle. It is true that when the reasons for a rule cease to exist the rule should cease, or when there never was any reason for the rule in the first place it should cease, but Worster v. Caylor, supra, is not that kind of a case.

I fail to see why the rule of res ipsa loquitur cannot be invoked in a railroad crossing collision where the non-operation of automatic signals and gates are charged as acts of negligence. They are under the exclusive control of the railroad company, the Indiana rule is that where they are not in operation to warn travelers, the jury may draw the inference that non-operation was an implied invitation to the traveler to cross the railroad tracks. Gillies v. New York Cent. R. Co. (1954), 124 Ind. App. 382 , 116 N. E. 2d 555 ; Louisville & N. R. Co. v. Revlett (1946), 224 Ind. 313 , 65 N. E. 2d 731 . The traveling public generally relies on the non-operation of an automatic signal as an invitation to cross the tracks. It is proper for the jury to take the non-operation of such signals into consideration in determining whether or not the plaintiff had been guilty of contributory negligence. The jury has determined that no contributory negligence was proved and the defendant had the burden on this issue. This record does not present a case where no reasonable man could find the plaintiff was free from contributory negligence.

Section 47-2114, Burns’ 1952 Replacement, which is §100 of the Uniform Act Regulating Traffic on Highways, is another example of poor draftsmanship in a uniform act. It regulates the conduct of an automobile driver at a railroad crossing at grade. For example, it often happens that a driver cannot stop his car within 50 feet from the crossing, due to the fact *483 other ears have stopped in front of him, but the wording of the statute is he shall stop within 50 feet of the crossing. The section says he shall not proceed until he can do so safely under various crossing situations enumerated in four subsections, which are not stated disjunctively or conjunctively. Clearly the word “or” should have been the last word at the end of subsections (a), (b) and (c). But I do not believe it was the expressed legislative intention to prohibit a traveler from proceeding only when the factual situation fell within all the subsections. Subsection (b) applies to a crossing where there is a crossing gate or a human flagman. Many crossings having automatic flasher signals do not have crossing gates or a human flagman. Yet if we give a conjunctive construction to all the subsections, the traveler would not be prohibited from crossing when a train was approaching, and the red flasher signals operating, simply because no automatic gate was down or no human flagman giving a warning. The reasonable construction of the entire section is the traveler driving a motor vehicle should stop not less than 10 feet from any railroad crossing at grade, and not proceed until he can do so safely when a factual situation is presented covered by any of the four subsections.

The general rule on the effect of an erroneous instruction was clearly stated by this court in American Employers’ Ins. Co. v. Cornell (1948), 225 Ind. 559, 569, 570 , 76 N. E. 2d 562, 566 , as follows:

“. . . It is true that prejudice from an erroneous instruction is presumed unless the contrary affirmatively appears and in considering the effect of an erroneous instruction this court assumes that the error influenced the result unless it appears from the interrogatories, the evidence, or some other part of the record that the verdict *484 under proper instructions could not have been different. Probst, Receiver v. Spitznagle (1939), 215 Ind. 402, 408 , 19 N. E. (2d) 263; City of Decatur v. Eady (1917), 186 Ind. 205, 217 , 115 N. E. 577 .” 2

However, to this general rule there is an exception where a general instruction on damages enumerates various items thereof, and the questioned item is followed by the words “if any.” In such case we have held the jury must have understood such item should not be considered unless there was some proof of such loss. Lincoln Operating Co. v. Gillis (1953), 232 Ind. 551, 560 , 114 N. E. 2d 873 ; McClure v. Miller (1951), 229 Ind. 422, 428 , 98 N. E. 2d 498 . Even if appellant’s contention that appellee’s requested instruction No. 2 was unsupported by any evidence of mental anguish, it was not reversible error since it was limited by providing “if any you find to exist.” But mental anguish and mental suffering which naturally and proximately flow from an injury are not fictitious or imaginary. Such elements of damages should not be denied by the law which seeks to provide a remedy for every wrong. I agree with the majority opinion that the jury could properly award compensation for “mental anguish and distress.”

I concur with Judge Arterburn’s opinion as to other contentions of error, and vote to affirm the judgment.

. “This doctrine has been generally defined to mean that when the thing which caused the injury to the plaintiff was under the control and management of the defendant or his servants, and the occurrence was such that in the ordinary course of things would not happen if those who had its control and management use proper care, that this affords reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s want of care; that under such circumstances there is a prima facie case of negligence. 45 C. J. 1193, §768; 38 Am. Jur. 989 , §295; Union Trac. Co. of Indiana v. Berry, Admr. (1919), 188 Ind. 514, 530 , 121 N. E. 655 , 124 N. E. 737 , 32 A. L. R. 1171; City of Decatur v. Eady, Execrx. (1917), 186 Ind. 205, 218 , 115 N. E. 577 .” Wass v. Suter (1949), 119 Ind. App. 655, 659 , 84 N. E. 2d 734 .

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.” Sweeney v. Erving (1913), 228 U. S. 233, 240 , 33 S. Ct. 416 , 57 L. Ed. 815, 819 .

. “Our books are full of cases which hold that instructions should be relevant to the issues and pertinent to the evidence, and if an instruction is given concerning a fact or set of facts to which no evidence has been adduced, it will be reversible error unless it clearly appears that the party affected was not harmed thereby. We cite only the following: Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369 , 91 N. E. 238 ; Chicago & Eastern Illinois Ry. Co. v. Whipking (1933), 96 Ind. App. 167 , 170 N. E. 548 ; Bachus, Admx. v. Ronnebaum (1934), 98 Ind. App. 603 , 186 N. E. 386 ; see also Loeser v. Simpson (1942), 219 Ind. 572 , 39 N. E. 2d 945 .” Hayes Freight Lines v. Oestricher (1946), 117 Ind. App. 143, 147 , 66 N. E. 2d 612 .