Murphy v. Milford, A. & W. St. Ry. Co.

210 F. 137, 1913 U.S. App. LEXIS 1893

• Court: Court of Appeals for the First Circuit
• Decided: November 14, 1913
• Docket: Nos. 1,026, 1,027
• Status: Published

Opinions

PUTNAM, Circuit Judge.

These suits were brought by a husband and wife for an injury to the wife, a passenger on an ordinary open street car, caused by the breaking of the usual bolt which supported one end' of the seat against the back of which the female plaintiff was leaning. Under the direction of the court the jury returned verdicts for the defendant. The defense grew out of the fact that the bolt which supported the back of the seat which fell with the female plaintiff had a break which was invisible when the bolt was screwed into the upright. On that point apparently the verdict was directed for the defendant.

[1] The law is very simply stated. First of all is the rule given by the Court of Appeals for this circuit in Whitney v. New York, N. H. & H. R. Co., 102 Fed. 850, 852, 43 C. C. A. 19, 21 (50 R. R. A. 615), that, as towards a passenger whom a carrier has taken into its safeguarding, such accidents are ordinarily presumed to be the results of the. negligence of. the carrier, for the reasons stated in that opinion. There the rule of the Gleason Case, 140 U. S. 435, 443, 11 Sup. Ct. 859 (35 L. Ed. 458), was applied as follows:

“The happening of an injurious accident is, in passenger cases, prima facie evidence of .negligence on the part of the carrier; * * * and the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight.”

[2] There can be no doubt .that ordinarily the duty of inspection was one of the duties thus resting on the defendant. It is true that the car in this case was only about five years old, and was purchased under circumstances which justified the company in assuming it was in good condition when purchased; but five years of railroad wear involves ordinarily many changes, and there is’ no evidence of inspection during the five years. The bolt which broke, and which was, of course,-covered in part by the .socket into which it was screwed, was an important bolt, not very large, but getting the thrust of the back of the seat as it reached its rest on its descent backwards and forwards. It was so located and so used that, if it gave, way, the back was liable to fall as it did in this case. It is evident that the ■bolt, with the use of proper tools, was easily inspected. In the,absence of evidence of inspection, it could not be properly ruled by ' the court to a jury peremptorily that the defendant performed its entire duty in this matter. It was for a jury, under proper instructions, to 3etermine whether inspection was proper or practicable, and,-; if yes, to what extent.

Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. Ed. 815, cited by the plaintiff in error, affords no assistance in this case. It, is only a general discussion of the question res ipsa loquitur with reference to the use of the X-ray. The case was decided in the court below against the plaintiff, which decision was finally sustained in. the Supreme Court. It holds that the burden of proof does not change, which may be the local law of the District of Columbia. At least the case was not one of injury to a passenger. It is not so favorable to the plaintiff as those already referred to. The rule we apply here was last reaffirmed in Patton v. Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361.

On each appeal the judgment of the District Court is reversed, the verdict is set aside, and the case is remanded to that court for further proceedings in accordance with law; and the plaintiff in error recovers the costs on appeal.