Sherman v. Southern Pacific Co.

On Petition for Eehearing

By the Court,

Sweeney, C. J.:

On the 3d day of December, 1910, in an opinion unanimously agreed to by this court, we affirmed a $15,000 judgment awarded to the plaintiff by a jury against the defendant for injuries sustained in a railway accident by reason of a derailed car on which the plaintiff was riding as a passenger at the time of receiving the injuries. Counsel for appellant petitions for a rehearing upon the following grounds:

" (1) Because this court inadvertently misconstrued evidence in assuming that the conductor and engineer in charge of the wrecked train were not called as witnesses.
" (2)’ That the court did not pass upon the question as to the power of the trial judge to instruct the jury that there was a presumption of negligence from the mere happening of the wreck, after the defendant had offered some evidence tending to prove that there was no negligence on its part.”

Both of these grounds urged for a rehearing are ably and elaborately discussed in appellant’s petition for a rehearing, which we have given thorough and serious consideration. We are still convinced, however, that the judgment affirmed in our opinion should not be disturbed.

We desire to confess inadvertently asserting the fact that the conductor and engineer in charge of the wrecked train were not called as witnesses, which we were led in error to make by reason of one of the briefs of counsel, but still insist that, if such were the fact, the law as *414expressed in the opinion on this point is sound, and that had the company failed to have called them as witnesses, having been in charge of the train as they were at the time of the wreck, they would still be considered to be in the employ of the company until the contrary was shown or their absence explained by the defendant company, and, if not called as witnesses or their absence explained or accounted for to the jury, that it would be legitimate argument before the jury for counsel of the plaintiff to have argued that their testimony might be adverse to the company, and such argument would not be prejudicial error.

The record shows that the remarks made by counsel for the plaintiff during the course of his argument were in reference to an engineer and conductor of another train, which, by the report of Conductor Trousdale of the wrecked train, were named as persons "who witnessed the accident or can give any information regarding it, ” and the inadvertence was in referring to these parties in the former opinion as being the engineer and conductor, respectively, of the wrecked train.

A further examination of the record in regard to this assignment of error discloses that counsel for the plaintiff withdrew his remarks with reference to the failure of defendant to call these witnesses, and that the final exception taken by counsel for the defendant did not go to this portion of his remarks.

We quote from the record the following excerpt bearing upon this proposition:

"Mr. Shoup: Upon both propositions; that is, as to the witnesses as well as the injuries?
"The Court: As to the witnesses? Mr. Shoup: Yes.
"The Court: I do not understand that counsel desired to extend to that.
"Mr. Cheney: Well, it is immaterial, if the court please. If counsel objects to what I said about these other parties, as to the conductor or engineer not being witnesses, that may be withdrawn, if desired.
"Mr. Shoup: We desire to have an exception to the *415ruling of the court as to the contents of the report. So far as it relates to the plaintiff’s injuries, we would like to have an exception upon that.
"The Court: Note the exception.”

However, aside from this inadvertent statement concerning the nonattendance of these witnesses, when, in fact, they were present and testified, in view of the failure of the company to account for the accident to the satisfaction of the jury and overcome the prima facie presumption of negligence against the company, which always arises in law when the plaintiff proves the derailment of the car, and which the defendant must overcome, we can see no such material prejudice suffered by the defendant by reason of the remarks of counsel for the plaintiff to warrant this court in reversing the judgment. The plaintiff proved that he was a passenger with paid fare on one of defendant’s trains, that the train was wrecked, and by reason of said wreck he received certain physical injuries.

Plaintiff further proved that the train was operated by the defendant company, and that whatever defect there was either in the roadbed, train, or its operation which caused the derailment, that such knowledge is presumed in law to be peculiarly within the knowledge of the defendant, and its officers and agents, and without the knowledge of the respondent.

Having proved these facts, the plaintiff was privileged to rest his case, and, in the absence of any other proof, the wreck would be inferred, as a matter of law, to be caused by the defendant’s negligence, and plaintiff entitled to judgment, unless this presumption was rebutted, which fact of whether or not the presumption is overcome is for the jury to determine from all the evidence adduced.

The law which we have laid down in our opinion we believe without any question of doubt to be' the law and supported by the great weight of modern authority to the effect that, "where a passenger is injured by the derailment or collision of a train, there is in law a presumption of negligence, which immediately arises against the com*416pany, requiring evidence by the company to rebut it. ” If we have failed to make ourselves clear on this point, we desire to reaffirm that in our judgment there is no question but that this is sound law, and founded on reason and justice.

Unquestionably the lower court had the legal power to instruct the jury that there was a presumption of negligence arising against the company when the wreck was proved to have been the result of a derailment, and while the company had the privilege and authority, and it was its duty to rebut this presumption if it could, yet we believe there was no invasion of the exclusive function of the jury, as declared by counsel in his petition for a rehearing, when the court instructed the jury, even after the defendant had given some evidence tending to prove there was no negligence on its part. The presumption of negligence against the company arose immediately upon the plaintiff proving the accident to be due to the derailed car, and it was for the jury to determine from the evidence in rebuttal to this presumption, which arises in law, as to whether or not the company sufficiently rebutted this presumption.

When a passenger buys a ticket on a passenger train and enters his compartment of travel, he practically places his life and limb in the custody and care of the railroad company, and having paid for the privilege of riding, with no authority to employ or select the employees of the carrier, to inspect its train or construct its roadbed, he has the right to rely upon the carrier for safety whilst on his journey, and it is both right and just that the responsibility of seeing the passenger is safely conveyed rests solely upon the company; and if a collision or derailment of the train or car on which he is traveling occurs by reason of faulty construction of the car or the roadbed, or by reason of neglect of some of the company’s employees, it is right and proper that the burden of proving that they are not in default in any of these respects rests upon the company, and the law is well and justly-settled that the presumption of negligence arises against *417the company whenever a derailment or collision takes place.

The rule as to the liability of the carrier was very fully elucidated in a number of other instructions given to the jury, and it cannot be said, we. think, that the jury was not fully instructed upon the rule of liability and the proof the defendant was required to offer to relieve itself from liability for the accident and the injury resulting therefrom. We think the jury was fully and fairly instructed, and that a greater degree of proof was not required of defendant than the law imposes, and that the force, extent, and limitations of the presumption of negligence arising from the-accident was fully pointed out to the jury and the defendant’s position in the law fully presented. (Murphy v. Southern Pac. Co., 31 Nev. 120; Burch v. Southern Pac. Co., 32 Nev. 75; Sherman v. Southern Pac. Co., 33 Nev. 385.)

Again, we reaffirm the law to be sound and well settled that "where a passenger proves that he was injured by a collision or derailed train that there is in law a presumption of negligence against the carrier, ” and in view of the thorough review which we gave to the case in our original opinion, and being still satisfied after a review of the same that the law therein stated is correct, the petition for a rehearing must be, and is hereby, denied.

Let such be the order.