Heppenstall Steel Co. v. Wabash R. Co. , 242 Mich. 464 ( 1928 )

I do not concur in affirming judgment for plaintiff.

South of defendants' east-bound main line is a side track which crosses Minnie avenue and terminates in plaintiff's plant east of the street. Nearly half way between Minnie avenue and the next street west, Swain avenue, a spur track runs southwesterly from the side track, and near the latter street another branch or spur in the same direction. The side track runs into plaintiff's plant on a slight down grade, the degree of grade not being shown. The witness testified:

"There is a slight down grade to the east. I don't know whether there would be enough grade for a car to run down there of its own momentum or not. I do not know the degree of grade, whether it is one per cent. or ten."

The only witness testifying of the accident itself lived on the east side of Minnie avenue nearly across the tracks from plaintiff's plant. She was sleeping and was awakened by the car crashing through the westerly door of plaintiff's plant. She also heard the crash when the cars reached the easterly end of the plant. She arose, put on a kimona and slippers, went downstairs and out on her front porch, where she stood about five minutes, then went across the street to plaintiff's plant, when she saw an engine and two cars standing on the side track just west of Minnie avenue. She testified:

"I first noticed this engine and two flat cars across Minnie street when I went out to go over to the building, and before I went into the building."

A trainman carrying a lantern came to the plant while she was there. Defendants put in no evidence. Plaintiff did not call any of the trainmen, yardmen, or enginemen.

The theory of the case for plaintiff as presented is that while the side track agreement between the parties saves defendants from liability for negligence they may be held liable for gross or wanton or reckless negligence, so-called, following E. B. Muller Co. v. Hines, 216 Mich. 664. It was there held upon direct evidence of what actually happened that defendant might be found to have been guilty of recklessness and wantonness, and recovery was permitted.

It is settled law of this State that the mere fact that an accident has happened is no evidence of negligence.Elsey v. J. L. Hudson Co., 189 Mich. 135 (L.R.A. 1916B, 1284). In Burghardt v. Railway, 206 Mich. 545 (5 A.L.R. 1333), it was said:

"This court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made."

And in Howe v. Railroad Co., 236 Mich. 577:

"That there was no eyewitness to the accident does not always prevent the making of a possible issue of fact for the jury. But the burden of establishing proximate cause, as well as that of negligence, always rests upon the complaining party, and no presumption of it is created by the mere fact of an accident."

There is no direct evidence of negligence. The circumstances from which it is argued negligence may be inferred are said to be:

"(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 on to 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."

With respect to (c) the force might perhaps have been gravity, the track was down-grade, how much is not shown. And if the force was an engine, was it used negligently?

Relative to (d) there is testimony that an engine and two cars stood near on the side track several minutes after the accident. Where they were at the moment of impact the record does not disclose.

A like, and in some instances a stronger, showing of circumstances could be set up from cases in which it has been held that there was no evidence of negligence. SeeElsey v. J. L. Hudson Co., supra, and cases cited.

The accident in this case at bar might have been caused by defendants' negligence, and it might have been caused by some mishap or misfortune for which defendants are not liable. What did cause it? The record does not disclose. The verdict rests on conjecture and ought not to stand. The rule of the Howe Case is applicable. We quote from it again:

"Something more should be offered the jury than a situation which, by ingenious interpretation, suggests the mere possibility of defendants' negligence being the cause of the injury."

It follows that a finding that the damage was caused by recklessness or wantonness, in legal effect by wilfulness, cannot be sustained.

Judgment should be reversed, with costs to appellants, and a new trial granted.

McDONALD, J., concurred with CLARK, J.