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

*485 ' Dissenting Opinion

Bobbitt, J.

I dissent from the majority opinion for the following reasons:

First: As one of the grounds for transfer it is asserted that the opinion of the Appellate Court contravenes a ruling precedent of this court in Worster v. Caylor (1953), 231 Ind. 625 , 110 N. E. 2d 337 , on the question of res ipsa loquitur, because appellant herein allegedly did not “detail all the facts” as was done in that case.

In the Worster Case the plaintiff (appellant) called the defendant (the doctor who performed the operation) as his (appellant’s) witness and as such he detailed fully and without reservation all the facts concerning the operation including the accidental perforation of the bowel — which was the negligence charged in the complaint. We held there, and correctly so, that under such circumstances the “presumption or inference of res ipsa loquitur disappeared from the case.”

At page 632 of 231 Ind. we stated the general rule as follows:

“ ‘ “Where the circumstances of the. occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed by the party charged with cape in the premises, the thing that happened amiss would not have happened,” negligence may fairly be inferred in the absence of any explanation.’ (Our emphasis.) 38 Am. Jur., Negligence, §295, pp. 989, 991. Sweeney v. Erving (1913), 228 U. S. 233, 238 , 33 S. Ct. 416 , 57 L. Ed. 815, 818 .”

In the Worster Case the party seeking to apply the doctrine went forward with the proof and fully de *486 tailed the facts which caused the accident. It seems evident beyond dispute that under such a circumstance there was no place for any inference of negligence because the alleged negligent act was described and explained in detail by the plaintiff’s own direct evidence.

By calling the defendant who performed the operation out of which the alleged negligent act arose, plaintiff-Worster was able to show the particular act of negligence that allegedly caused the injury, and by so -doing he removed the circumstance which had, or might have, invoked the doctrine of res ipsa loquitur. When the reason for the rule was removed, it then followed, as Judge Gilkison said: “res ipsa loquitur disappeared from the case.”

The prima facie case which the operation of the rule had established was overthrown by the detailed explanation of how the injury occurred, and from then forward the plaintiff’s case depended upon the factual situation presented by all the evidence together with any reasonable inferences which might be drawn therefrom, unaided by any conclusion which, in the absence of explanation or rebuttal evidence, the jury was permitted to draw from the fact of the injured intestine.

The doctrine of res ipsa loquitur is merely a rule of evidence. 38 Am. Jur., Negligence, §298, p. 994.

“The application of the doctrine is based on the theory that under the special circumstances which invoke its operation, the plaintiff is unable to show the particular act of negligence which caused the injury or that the defendant is in a better position to do so.” Wass v. Suter (1950), 119 Ind. App. 655, 661 , 84 N. E. 2d 734 .

The Appellate Court has defined res ipsa loquitur in Wass v. Suter, supra, at page 659 of 119 Ind. App., as follows:

*487 “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.” Citing authorities.

There seems to me to be no serious conflict between the above statement and that made by this court in Worster v. Caylor, supra (1958), 231 Ind. 625 , at page 632, 110 N. E. 2d 337 , as follows:

“It will be noted that the doctrine res ipsa loquitur does not prevail where the party against whom it might apply accepts the duty of going on with the proof and details the entire transaction. In such a situation the presumption, inference or doctrine ceases to exist and all questions concerning the injury must be determined from the evidence unaided by the inference or doctrine of res ipsa loquitur.’’

When a factual situation such as that described by the rule is shown to exist, res ipsa loquitur permits, but does not compel, the trier of the facts to draw a conclusion which natural reason might draw from the facts proven. Res ipsa loquitur is an evidentiary doctrine designed to enable the plaintiff to establish a case for the jury’s consideration, where he has no means of proving specific acts of negligence.

If plaintiff, by his evidence, has established all the elements necessary to invoke the doctrine of res ipsa loquitur, and thereafter neither plaintiff nor defendant offers a detailed explanation of how the accident happened, the plaintiff thereby establishes a prima facie *488 case to be decided by the trier of the facts on the basis of which it may, or may not, find for the plaintiff, without proof of arty specific negligent act. But if the defendant attacks plaintiff’s case directly by going forward with a detailed explanation of the causes of the accident, then the jury may no longer infer negligence on the basis of the mere happening of the accident, but must consider all the evidence in determining whether or not defendant was negligent.

Since res ipsa loquitur is designed to meet the situation where' no evidence of specific negligent conduct has been introduced, it follows that once such specific, detailed evidence is produced the reason for applying the doctrine no longer exists. Therefore, it may properly be said that, “In such a situation the . . . inference of doctrine ceases to exist . . . .” This means simply that the trier of the facts must consider the specific detailed evidence when introduced and cannot ignore it merely because it could have found for the plaintiff, through application of the doctrine of res ipsa loquitur, if no such detailed evidence had been introduced. With the prima facie case overthrown by a detailed explanation by the defendant, it is then for the jury to determine the proximate cause of the alleged injury from all the facts as shown by all the evidence.

It. is also well settled in Indiana that in order for the doctrine to apply it must be made to appear that all instrumentalities causing the accident were under the exclusive control arid management of the defendant. Worster v. Caylor, supra (1958), 231 Ind. 625 , 110 N. E. 2d 337 ; Indiana Harbor Belt R. Co. v. Jones (1942), 220 Ind. 139, 148 , 41 N. E. 2d 361 ; Pittsburgh, etc. R. Co. v. Arnott, Admx. (1920), 189 Ind. 350, 368 , 126 N. E. 13 ; Prest-O-Lite Co. v. Skeel (1914), 182 Ind. *489 593, 599 , 106 N. E. 365 , Ann. Cases 1917A 474; Wass v. Suter, supra (1950), 119 Ind. App. 655 , 84 N. E. 2d 734 ; Kickels v. Fein (1938), 104 Ind. App. 606, 617 , 10 N. E. 2d 297 ; Pittsburgh, etc. R. Co. v. Hoffman (1914), 57 Ind. App. 431, 442 , 107 N. E. 315 ; Hook v. National Brick Co. (1945), 7 Cir., 150 F. 2d 184 .

An examination of the essential elements necessary to invoke the doctrine of res ipsa loquitur leads me to the conclusion that it does not apply in this case for the following reasons:

(1) There is a specific allegation of negligence— “that defendant negligently failed to give any adequate warning or signal of said approaching train in that defendant failed to cause the gates guarding said street crossing to be closed, and failed to cause a bell to ring or a light to flash on signal devices maintained at said crossing by defendant and defendant carelessly and negligently ran said train from the east upon its tracks without blowing a whistle, sounding a horn, ringing a bell, or without giving any signal or notice whatever of its approach and negligently and carelessly ran said train upon and against plaintiff’s said automobile.” New York, Chicago & St. Louis R. Co. v. Henderson (Ind. App., 1956), 137 N. E. 2d 744 , 745.

There is, however, no general allegation of negligence in the complaint herein. In such a situation an instruction submitting a doctrine of res ipsa loquitur is reversible error. New York, etc. R. Co. v. King (1926), 85 Ind. App. 510, 514 , 154 N. E. 508 .

Here the alleged acts of negligence are specifically pointed out in the complaint. The specific act of which plaintiff-appellee complains is the failure of the gates and signals to work and not why they failed to work.

Here the plaintiff-appellee knew and. was able to, *490 and did, detail and point out the specific alleged acts of negligence which caused her injury, and since she knew them, she was able to show them. The defendant-appellant was in no better position to do so than was plaintiff-appellee, and under these circumstances plaintiff was required to prove them, or some of them, “without the aid of the . . . [inference] which flows from the application of the doctrine of res ipsa, loquitur.” New York, etc. R. Co. v. King, supra (1926), 85 Ind. App. 510, 515 , 154 N. E. 508 ; Cf: Baltimore, etc. R. Co. v. Hill, Admr. (1926), 84 Ind. App. 354, 372 , 148 N. E. 489, 495 .

(2) The thing which caused the injury here was the collision of the train engine with appellee’s automobile. Both appellant and appellee were charged with certain degrees of care. The duty to avoid the collision which caused the alleged injury herein rested upon appellant and appellee with equal weight. Pittsburgh, etc. R. Co. v. Hoffman, supra (1914), 57 Ind. App. 431, 446 , 107 N. E. 315 .

Only one of the instrumentalities which caused the alleged injury herein was in the exclusive control of appellant. The automobile was exclusively in control of appellee.

The rule applicable here is stated in Cadwallader v. Louisville, New Albany and Chicago Railway Co. (1891), 128 Ind. 518 , at page 520, 27 N. E. 161 , as follows:

“Assuming in this case that the appellant had - the right to presume that no train was approaching, by reason of the failure of the flagman to give notice, yet this did not excuse her from the use of her senses of sight and hearing in order to ascertain the fact for herself. With the use of these senses she was as well able to ascertain whether a train was approaching as the flagman at the *491 crossing, and a failure to use them was negligence.” See also: Cleveland, etc. R. Co. v. Heine (1902), 28 Ind. App. 163, 167 , 62 N. E. 455 ; Pitcairn v. Honn (1941), 109 Ind. App. 428, 439 , 32 N. E. 2d 733 .

We cannot presume here that if the appellant had used due care the accident would not have happened. The accident here is not such that we can say “in the ordinary course of things would not have happened” if appellant had done the things with which it is charged as failing to do. Neither can we presume that appellee would not have driven her automobile onto the crossing if signals had been flashing and the gates working properly. It is common knowledge that people have done such things.

The facts here are different from the case of the barrel falling out of the window. 1 There the barrel was in the exclusive control of the defendant. There it is conclusive that if the barrel had not fallen there would have been no accident. That cannot be said about the case at bar. It has been said appellee was in exclusive control of the automobile. It is entirely possible, and there is ample evidence in the record to so show, that her negligence in failing to use the degree of care required of her under the circumstances may not only have contributed to her injury, but may even have been the proximate cause therefor.

It is stated in the majority opinion that Instruction No. 6 was given “practically verbatim” in Pittsburgh, etc. R. Co. v. Boughton (1924), 81 Ind. App. 129 , 142 N. E. 869 . However, the facts in that case are so different from the factual situation in this case that it, *492 in my opinion, cannot be considered as authority for the giving of Instruction No.. 6 in this case.

For the foregoing reasons I believe that the trial court committed reversible error in giving appellee’s Instruction No. 6.

Second: There is sufficient evidence in this case to show contributory negligence on the part of appellee. When appellee left the bridge 65 feet from the crossing, the train was plainly in view 130- feet from the crossing and, with the train visible from the bridge, there is no escape from the proposition that it was visible to her at all times while she was on the bridge. Appellee testified that she looked and, in her testimony, she stated she did not look until she was almost to the track. Appellee further testified that she could have seen the train if it had been there, but she did not see it. She further testified that, if she had seen the train, she could have stopped and admits that she did not stop at any time in her approach to the crossing. Nowhere in her testimony did appellee ever testify that she listened for a train.

“It is well settled that railroad crossings are in themselves a warning of danger, and all persons approaching the same must exercise reasonable care for their own protection and, if they fail to do so and are thereby injured, they will be deemed guilty of contributory negligence; that travelers upon a public highway, in attempting to pass over a railroad crossing, must look and listen attentively for the approach of trains and, if a traveler, by the exercise of reasonable care, could have seen the approach of a train by looking in time to have avoided injury, by the use of reasonable efforts, it will be presumed, in case he is injured by a collision therewith, that he either did not look, or, if he did look, that he did not heed what he saw; . . . .” New York, etc. R. Co. v. Leopold, Admr. (1920), 73 Ind. App. 309, 315 , 127 N. E. 298 . See *493 also: Waking v. Cincinnati, etc. R. Co. (1920), 72 Ind. App. 401 , 125 N. E. 799 ; Chesapeake & Ohio Ry. Co. v. Patchett (1933), 96 Ind. App. 220, 224 , 184 N. E. 789 ; Briske v. Village of Burnham (1942), 379 Ill. 193 , 39 N. E. 2d 976, 979 .

Since I have concluded that the doctrine of res ipsa loquitur does not apply in the case at bar, I see no reason to discuss further the effect, if any, of contributory negligence upon the operation of the doctrine.

Third: Regardless of how we might eventually decide the question of res ipsa loquitur, this case, in my opinion, must be reversed because of the giving of appellee’s Instruction No. 2 on the question of pain, suffering and mental anguish.

It is fundamental that a plaintiff cannot recover on matters on which there is no proof.

True, as the majority opinion says, the jury may infer mental and physical suffering which would naturally flow from a personal injury but such must be alleged and proved. In this case there is neither allegation of, nor proof of, mental anguish. As Judge Crumpacker said in the Appellate Court’s opinion, “mental 'anguish, like any other element of recoverable damages, must be proven.”

Inferences may be drawn to support evidence of mental anguish, but they cannot supply evidence which is entirely missing from the record.

The question here presented was settled in Chicago, etc. R. Co. v. Blankenship (1926), 85 Ind. App. 332 , at page 341, 154 N. E. 44, 46 , as follows:

“There is no allegation in the complaint o,f any ‘mental anguish’ suffered as being consequent upon said injury, and no damages were asked on account of such element, yet the court, at the request of appellee, in Instruction No. 7, told the jury that if it found for the plaintiff, in as *494 sessing his damages, it should allow and compensate him not only for the physical pain and suffering which he had endured, but also for that which he would endure in the future, if any such pain and suffering were shown by the evidence, but that it should allow to him damages on account of ‘mental anguish resulting from his physical injuries that he will sustain in the future.’ It follows that the above instruction was, as to the element of ‘mental anguish,’ erroneous, and as we have no way by which we can determine that the jury did not follow the above instruction, and the presumption is that it did follow said instruction, and include in its verdict compensation for such mental anguish, the verdict, to that extent at least, must be deemed excessive, as including damages for an element not within the issues.”

The majority opinion, as I read it, would set up a new rule on proving mental anguish and not only upset precedents of this and the Appellate Court which have stood for many years, but would leave the jury unrestrained to draw upon their own outside experience for authority to grant unlimited damages in such cases without such element of damages being either pleaded or proven.

I think the Appellate Court’s opinion reached a just and correct result under the evidence in the record, and I would deny transfer.

. Byrne v. Boadle (1863), 2 H. & C. 722, 159 Eng. Reprint 299.