The principal opinions are unwilling to admit that there is an exception to the rule that "the burden of proof abides with the plaintiff throughout the entire trial." They resort to fiction. In the trial of an ordinary law suit there is no place for the application of this rule, unless the evidence "is equally balanced." In effect it is so stated in the principal opinion. I neither know nor have I heard of a law suit in which the evidence was equally balanced. There may have been such law suits, but I do not believe it could happen. Always some fact or circumstance in evidence determines the question. In other words, the rule is a theory without substance, "a mere form," and no place can be found for its application in an ordinary law suit. However, it is an unfair and dangerous weapon in the hands of a defendant in ares ipsa loquitur case. In such a case the proof of carrier, passenger, wreck and injury is held to be substantial evidence of negligence on the part of the carrier. If the carrier offers no evidence, I think the jury should be instructed that if it finds the relationship of carrier and passenger, a wreck and injury, the verdict should be for the passenger. From the evidence, the jurors only know that a wreck occurred and a passenger was injured. On these facts reasonable minds could not ground a difference of opinion on the question of *Page 544 negligence. The jury could only presume negligence as did the judge. Therefore, in the absence of evidence on the part of the carrier, the jury should be instructed that if it found the relationship, wreck and injury, the verdict should be for the passenger. If negligence should be presumed in the absence of evidence on the part of the carrier, it also may be presumed or inferred if the carrier introduced evidence, and the jury should be so instructed. It should further be instructed that the burden is upon the carrier to show by a preponderance of the evidence that it was not negligent.
The principal opinions do not contend that it would be unfair to so instruct the jury. Indeed, they could not well do so. We hold carriers liable in damages for fires along the right of way on a mere showing that the fire originated from the engine. We hold them insurers in transporting inanimate freight. We also hold them insurers in transporting livestock, excepting therefrom injuries occasioned by the Act of God, public enemy or natural propensity of the animal. The theories advanced for so holding are of no consequence. The fact remains that to properly administer justice it is necessary to so rule. If under such facts it is necessary to so rule, it is not unfair in the administration of justice to require a carrier to prove by a preponderance of the evidence that its negligence did not cause the wreck and injury.
The passenger has proven no negligence, and to instruct the jury that the burden is upon the passenger to prove by a preponderance of the evidence that negligence of the carrier caused the wreck, is almost directing a verdict for the carrier. The instruction for the passenger that the jury may infer negligence from the wreck is not understood by the jurors as authorizing a verdict for the passenger, when said instruction is considered with the instruction for the carrier that the burden of proof to establish negligence on the part of the carrier abides with the plaintiff throughout the entire trial. Those instructions confuse the jury, often cause a mistrial and sometimes cause a failure of justice.
Rules are established to aid in the administration of justice. If under certain conditions a rule interferes with the administration of justice, we should not hesitate to establish an exception. There is nothing sacred about the burden-of-proof rule. We should put aside fiction and thereby place the burden of proof in res ipsa loquitur cases where it belongs. If we frankly admit that there is an exception to this rule, we thereby eliminate the necessity of resorting to hairsplitting differences between certain words and phrases, and we permit the submission of the issue to the jury by instructions that are in no way misleading.
Entertaining these views, I do not agree to paragraph three of the principal opinion, and I do not agree to the concurring opinion. Therefore, I respectfully dissent. White, J., concurs. *Page 545