Heppenstall Steel Co. v. Wabash Railway Co.

219 N.W. 717, 242 Mich. 464, 1928 Mich. LEXIS 806

Opinions

Fellows, J.

(after stating the facts). This court has uniformly held that cases may be made by circumstantial evidence. This is not the adoption of the rule res ipsa loquitur, a rule not favored by this court. It has always been the rule of this jurisdiction that the jury should be permitted to draw legitimate inferences from the established facts. So to do is an entirely different thing than to permit the jury to speculate or guess what the facts are. In the instant .case the plaintiff’s proofs presented the following established facts for the consideration of the jury: (a.) That a railway track extended from defendants’ switching yard to and into plaintiff’s building; (b) that the three cars entered plaintiff’s building on this track; (c) that the cars could not have pushed their way onto plaintiff’s spur track through a steel curtain into- and through the factory and destroyed a brick wall at the further end unless there were some adequate force behind them; (d) the fact that an adequate force (a live switch engine) with three cars stood close by on the same track on which the three cars entered the building; (e) that the switch engine and yards belonged to defendants and was being operated by their employees.

Plaintiff’s declaration counted on the wilful and wanton acts of defendants’ agents, upon so-called gross negligence (but see Gibbard v. Cursan, 225 Mich. 311). It was a legitimate inference to- be drawn from the established facts that defendants’ employees sent the cars into this siding with such force that they crashed through a steel curtain, over two high bumpers near the end of 13Ó feet of track running through the building and through a brick wall. If they did so I think such agents of defendants acted in wanton disregard of the rights of plaintiff and that on the author ity of E. B. Muller & Co. v. Hines, supra, plaintiff here made a case for the jury.

I think the judgment should be affirmed.

Fead, C. J., and North, Wiest, Potter, and Sharpe, JJ., concurred with Fellows, J.