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SECTION 2. EVIDENCE OF NEGLIGENCE.

GAVETT v. M. & L. Ry. Co.

(16 Gray, 501.-1860.)

J. W. May for the plaintiff.

B. F. Thomas for the defendants.

[BK. II.

BIGELOW, Ch. J. The line which marks and separates the respective duties and functions of the court and jury is certain and well defined. The difficulty arises in determining on which side of this line particular cases fall; that is, in deciding whether a case presents only a question of law, or involves an inquiry into facts and the inferences deducible from them. Certainly the court in all cases should be scrupulously careful not to invade the province of the jury by undertaking to decide on the weight or effect of evidence, or by refusing to submit to their consideration any question of fact, material to the issue, which may be in dispute between the parties. On the other hand, it is the clear duty of the court to decide on the legal effect of the evidence, and to say whether it is such as to entitle a party to the verdict; otherwise the jury might be called on to decide a pure question of law. It may be said generally that it is the duty of the judge to decide whether there is any evidence; of the jury to determine upon its sufficiency. This may be illustrated by an example. Suppose the facts of a case were stated in the form of a special verdict in favor of a plaintiff. This would be supported if the facts so found comprehended all the material averments necessary to maintain the action. But if upon them, with all possible inferences which reasonable men might draw therefrom, there was an absence of an essential element which it was incumbent on the plaintiff to establish, there can be no doubt it would be the plain duty of the court to say, as a matter of law, that he had failed to maintain his action. In like manner, when the evidence offered by a party wholly fails to prove a material allegation, it is the province of the court to decide that no case is proved which can in law support a finding in his favor.

In such case, the testimony furnishes nothing for the consideration of the jury, and it is as much the duty of the court to determine that there is no evidence to sustain the action, as to exclude evidence on the ground of its irrelevancy. If, however, there is a dispute upon the facts, or the credibility of witnesses is drawn in question, or a material fact is left in doubt by the testimony, or there are inferences to be drawn from the facts in proof, then it would be proper to submit the case to the consideration and determination of the jury. (Company of Carpenters v. Hayward, 1 Doug. 374; Mitchell v. Williams, 11 M. & W. 216; Doyle v. Wragg, 1 Fost. & Finl. 7; Stormont v. Waterloo Life & Casualty Assurance Co., 1 Fost. & Finl. 22; Sawyer v. Nichols, 40 Maine, 216.)

In the case at bar there is no dispute about any of the material facts upon which the plaintiff rests her claim to damages. If there is any discrepancy in the statements of the witnesses, the points of difference do not change in any degree the legal aspect of the case. The plaintiff not only failed to offer any evidence of ordinary care on her part at the time of the occurrence of the accident, but it appears, on the testimony adduced by her in support of her case, that she was guilty of negligence, which contributed to produce the injury of which she complains. One of two facts is estab lished by the proof. After the train had started and was in motion, the plaintiff either passed out of the door and was on the platform of the car for the purpose of attempting to leave it, or she actually stepped from the platform of the car upon that in front of the station. While thus situated, she was thrown down and injured. It was therefore her attempt to leave the train, after it was in motion, that directly tended to bring about the casualty which occurred. Now it cannot be doubted that the well-known hazards of transportation on railroads, and the unprotected and exposed situation of persons standing on the platform of the car, or attempting to leave it when the train is about to start or is actually in motion, render it unsafe for passengers to place themselves in such a situation, and preclude the idea that due care can be exercised under such circumstances. In the absence of anything to create excitement or cause alarm, the attempt to leave

a car, while the train is in motion, by passing to the outside or stepping off, is prima facie evidence of carelessness. So it was decided to be by the court in Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64, in which it was held that the plaintiff was wanting in ordinary care in attempting to leave the cars when they were in motion.1

CLAFLIN V. MEYER.

(75 N. Y. 260.-1878.)

A. R. Dyett for appellant.

Wm. H. Arnoux for respondents.

HAND, J. The counsel for the respondents is correct in his position that the question of burden of proof is the material one upon this appeal. For the evidence is such that if it were incumbent upon the defendant to prove himself free from all negligence causing or attending upon the burglarly, and not merely to leave the case as consistent with due care as with the want of it, it is clear that the judgment, so far as it adjudges his liability for the goods, must be affirmed, as we cannot say that such proof of a conclusive character was given. But the law, as to the burden of proof, is pretty well settled to the contrary. Upon its appearing that the goods were lost by a burglary committed upon the defendants' warehouse, it was for the plaintiffs to establish affirmatively that

1 In Burrows v. Erie Ry. Co., 63 N. Y. 556, Rapallo, J., says (p. 559): “The cases in which a recovery has been allowed, notwithstanding that the passenger undertook to leave a car while in motion, are exceptional and depend upon peculiar circumstances," citing Penn Ry. Co. v. Kilgore, 32 Pem. St. 292, where train started while plaintiff was alighting, and Filer v. N. Y. C. Ry. Co., 49 N. Y. 47, where defendant's brakeman advised plaintiff to get off, as they are not going to halt any more." The Alabama Supreme Court held in M. & E. Ry. Co. v. Stewart, 43 A. L. J. 485; 8 So. R. 708 (1890) that plaintiff could recover where he boarded a moving train upon the conductor's crying" All aboard!" See, also, Renner v. Ry. Co., 46 Fed. R. 344, and authorities cited.

such burglary was occasioned or was not prevented by reason of some negligence or omission of due care on the part of the warehouseman.

The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to deliver them, or account for such non-delivery, or, to use the language of Sutherland, J., in Schmidt v. Blood, where "there is a total default in delivering or accounting for the goods" (9 Wend. 268), this is to be treated as prima facie evidence of negligence. (Fairfax v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 11; Steers v. Liverpool Steamship Co., 57 id. 1; Burnell v. N. Y. C. R. R. Co., 45 id. 184.) This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them.

But where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facie evidence of his want of care, and the court will not assume in the absence of proof on the point that such fire or theft was the result of his negli-( gence. (Lamb v. Camden & Amboy R. R. Co., 46 N. Y. 271, and cases there cited; Schmidt v. Blood, 9 Wend. 268; Platt v. Hibbard, 7 Cow. 500, n.) Grover, J., in 46 N. Y. supra, says, in delivering the opinion of the court, the question is "whether the defendant was bound to go further (.e. than showing the loss by fire) and show that it and its employees were free from negligence in the origin and progress of the fire, or whether it was incumbent upon the plaintiffs to maintain the action to prove that the fire causing the loss resulted from such negligence." And he proceeds to show that the charge of the judge who tried the cause gave to the jury the former instruction and that this was contrary to the law and So Sutherland, J., in 9 Wend. supra, in the case of a warehouseman, says the onus of showing the negligence

erroneous.

66

seems to be upon the plaintiff unless there is a total default in delivery or accounting for the goods." And he cites a note of Judge Cowen to his report of Platt v. Hibbard, 7 Cow. 500, in which that very learned author says, criticising and questioning a charge of the circuit judge, "the distinction would seem to be that when there is a total default to deliver the goods bailed on demand, the onus of accounting for the default lies with the bailee; otherwise he shall be deemed to have converted the goods to his own use, and trover will lie (Anonymous, 2 Salk. 655); but when he has shown a loss, or where the goods are injured, the law will not intend negligence. The onus is then shifted upon the plaintiff."

It will be seen, as the result of these authorities, that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging, as an excuse, that they have been stolen or burned. These facts must appear or be proved with reasonable certainty. Nor do we concur in the view that there is in these cases any real "shifting" of the burden of proof. The warehouseman, in the absence of bad faith, is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman, and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but if, either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.

Applying these principles to the present case, we must hold that when it appeared, as it did, that the goods were taken from the defendants' warehouse by a burglarious entry thereof, the plaintiffs should have shown that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted or contributed to cause or permit that burglary.