This is a negligence case. The rule of conjectural cause is pressed upon us by a defendant held actionably negligent in the court below. We are reminded of decisions alleging that this Court does not recognize the doctrine res ipsa loquitur. It is said that the evidence before us proves an accident only, and that there is a want of proof or inference from proof justifying the verdict and judgment under review. The question is recurrently vexing, yet it need not be, at least in so marked a degree as modern experience discloses.
There are worthy landmarks. All that is needed is devotional reidentification thereof. Seventy years ago another defendant's counsel, having criticized then recent decisions dealing with the law of negligence, requested that this Court "lay down some definite and fixed rule by which we would be governed upon this question" (Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584, 591
"The difficulty is not in the rule, but in the application of it to the facts of the particular case. The testimony is often of such a nature that the trial
It will be noted, on examination of Carver, that Michigan's nationally-recognized authority (Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99) is cited in lead support of the quoted rule. It will be noted, too, that such rule has been pursued and applied for many years in a variety of cases. Instances of its application will be found in Schoepper v. Hancock Chemical Co., 113 Mich. 582; Stowell v. Standard Oil Co., 139 Mich. 18 (17 Am Neg Rep 569); Parker v. Union Station Ass'n, 155 Mich. 72; Waidelich v. Andros, 182 Mich. 374; Burghardt v. Detroit United Railway, 206 Mich. 545 (5 ALR 1333); Butrick v. Snyder, 236 Mich. 300; Collins v. Perry, 241 Mich. 361; Pattinson v. Coca-Cola Bottling Company of Port Huron, 333 Mich. 253; and Spiers v. Martin, 336 Mich. 613. It appears to have been epitomized best by Mr. Justice COOLEY (3 Cooley on Torts [4th ed], § 481, p 389) in these words:
"But in a very large proportion of the cases in which negligence is counted upon, the facts are of that ambiguous quality, or the proper conclusion so doubtful, that different minds would be unable to agree concerning the existence of fault, or the responsibility for it. The question will often be, does the defendant appear to have exercised the degree of care which a reasonable man would be expected to exercise under like circumstances? To such a question a man of exceeding cautions temperament might respond that he did not; another more sanguine and bold might say he did; and by the side of
"If the judge, in such a case, were to pass upon negligence as a question of law, he must, in doing so, be endeavoring to enforce a rule of a variable nature, which must take its final coloring from the experience, training, and temperament of the judge himself; a rule which his predecessor might not have accepted, and which his successor may reject, and upon which a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different."
Assuredly, judges are mortal men, "and men are different." For that standout reason the case at hand must indeed "be a very clear one which would justify the court in taking upon itself this responsibility"
Some 30 years ago the supreme court of Alabama adopted a workable test-definition designed toward ascertainment of what is conjectural and what is
"As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only. On the other hand, if there is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence."
Much the same language will be found in Juchert v. California Water Service Co., 16 Cal.2d 500 (106 P.2d 886), where the question was considered at length. Quoting from an earlier case the court said (p 507):
"If, however, plaintiff has proven sufficient facts to justify a verdict upon one theory, the fact that there may be one or more other seemingly rational explanations of the episode in no manner precludes a recovery or invalidates the verdict. These are mere matters of argument to be presented to the jury."
Turning now to the record: Reference is made initially to the defendant's official report of this accident. The report was filed in March of 1953 with the public service commission. It describes the occurrences we are to consider in the following language:
Subject to presently unimportant exceptions both parties have accepted the trial judge's statement of facts as set forth in his opinion denying defendant's motion for new trial. It follows:
"On March 17, 1953, at 10:20 p.m. plaintiff, Mitchell Kaminski, employed as a journeyman electrician at General Motors gear & axle plant on Holbrook avenue near the borderline of Detroit and Hamtramck, had occasion to cross from one area to another on the plant premises. At the same time defendant Grand Trunk Western Railroad Company was operating a 2-unit train on the employer's premises consisting of a gondola car, of which the overall length of the car body was 41' 6", which was being pushed by a Diesel switching locomotive and which was proceeding northerly in a forward direction. The train was on a spur track running in a northerly and southerly direction across the premises with an 18° curve to the left. The purpose of defendant's operation was to switch the loaded gondola car to a subtrack at a switch point about 160 feet ahead of its position on the spur track and thence into one of the plant buildings where the spur track ends.
"The surface area of the premises was paved, and on the spur track there was a plank crossing. For a distance of 51 feet and upwards west of the spur track the paved surface sloped toward the track, the greatest grade being 1.54%, but the crossing itself was elevated slightly above the grade.
"As plaintiff, walking in a northerly direction, approached this crossing, he heard the rumble of defendant's train as it approached the crossing and stopped about 6 feet westerly from the spur track, stepped backward 2 steps and watched the train probably 5 or 6 seconds during which time it traveled
"The deck of the trailer was flat; 15" off the ground; had 4 metal stakes welded in the corners which extended 24" above the flat surface; was on rubber wheels equipped with ball bearings, and had a tongue or hitching rod connected to the undersurface of the top that extended out 28" from one end of the trailer, the flat surface of which is 36" wide and 72" long.
"The train operated by the defendant was going northerly at a speed of about 6 to 8 miles per hour when it entered the curve, but at the crossing it had slowed down to from 3 to 5 miles per hour; the headlight was bright and shining in a forward direction; the signal bell was ringing; the conductor was on the extreme right front corner of the gondola car called the point of the car, a small lighted lantern in his hand. He could see 40 or 50 feet ahead, was looking in a 25' span and could see to the left, westerly, for an unspecified distance that was upwards of 5' beyond the west rail of the spur track. He did not see either the trailer or the plaintiff prior to hearing the screeching or scraping sound coming from the left side of the gondola car. The engineer and fireman were in their proper positions in the right and left side of the cab, respectively.
"The night was dark, the area was poorly lighted but not in complete darkness; there were no flood lights. No witness saw the trailer which was painted a dark green color until plaintiff was found lying on it immediately after the occurrence by members of the train crew. The conductor, from his position on the point of the gondola car, heard a scraping or screeching sound on the left side somewhere near the middle of the gondola car, gave emergency signal
"The switching operation was part of a movement of approximately 200 cars per day either in or out of the plant, performed by switching crews working three 8-hour shifts. It was not unusual for employees to walk back and forth in that particular area and in so doing make use of the crossing, a fact known to the conductor, who also testified that at times it was necessary for train crews to stop trains in the area to remove or have removed trailers that were either on the tracks or too close to the tracks for clearance."
First: Defendant insists that plaintiff, having called conductor Miller to the stand for cross-examination, is bound by Miller's testimony; that Miller's testimony, portrayed as being undisputed, establishes that there are nonnegligent inferences of causation equal in evidentiary value to the one plaintiff relies upon, and that the cause of plaintiff's injuries is therefore conjectural. It contends that rules set forth in Poundstone v. Niles Creamery, 293 Mich. 455; Manley v. Potts, 286 Mich. 671; Barry v. Elkin, 332 Mich. 427; and Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, call for a directed verdict in its favor, and sums its position this way:
"Even if, by a stretch of the imagination, it could be said the facts support an inference the gondola
The trial judge carefully considered and denied defendant's aforesaid invocation. Considering previously-mentioned precepts we think he was right in so doing. He said:
"It cannot be said that the testimony produces ground for a legitimate inference that the plaintiff was struck by the trailer rolling down the incline inasmuch as the clanking or screeching noise on the side of the gondola car preceded the blow received on his right knee. There is no room for an inference that such clanking and scraping sound which preceded the striking of plaintiff could have been caused by the metal cart striking against plaintiff's body.
"That the testimony is productive of a reasonable inference that the trailer, rolling down the incline, struck the gondola car and bounced back against the plaintiff is vitiated by the established fact that the screeching noise that brought on the emergency signal and caused the prompt stopping of the train occurred at the precise point, the center of the gondola car, at its precise point of greatest overhang, at the precise moment that it would have to come down the incline at the precise rate of speed required to insure the contact. Such a combination of circumstance is possible but not probable. There is testimony that the train crew was obliged to stop trains on occasion to obtain clearance where objects were left on or near the tracks; there is no testimony that at any time any trailer was ever observed rolling down the grade, to come to rest at or near the crossing, or even that such an incident were possible experimentally. A logical and probable inference can
"Inasmuch as it was the conductor's duty to watch out for obstacles along the spur track, that he knew of the previous existence of these trailers in the close vicinity of the spur track, that he had a lantern with him that showed 25 to 40 feet in addition to the headlight of the Diesel, that he could see an unstated distance which was upwards of 5 feet beyond the left track, there was a question of fact for the jury as to whether or not the conductor should have seen the trailer, there having been nothing else in the area that could have come in contact with the gondola car except the trailer, which the conductor testified could have caused the scraping sound that he heard, and, seeing it, have taken precautions to avoid the accident."
The trouble with defendant's "other explanations" is the comparative improbability thereof. The first, that the trailer rolled directly into plaintiff absent contact with the train, is out of present question considering the quoted proof of auricular occurrences. The latter was no "din" of a large automobile plant, as defendant infers. It meant accident to conductor Miller. On acount thereof he gave a stop signal to the engineer which the latter executed promptly.
The other "explanation," that the trailer rolled into the gondola and caromed off against plaintiff's legs, is possible but unlikely. We note particularly the construction of the trailer. It has a single pivoting axle and tongue at the forward end, similar to the construction of a farm wagon. According to a
Second: Error is assigned upon an obvious error of inadvertence which appears in the trial judge's charge. He told the jury:
"It is the law in Michigan, that if the plaintiff was guilty of any negligence which contributed to any extent or any degree to the causing the injury, then, the plaintiff may recover."
The court's charge, viewed as a whole, fairly and properly advised the jury that negligence of the defendant, and freedom from contributory negligence
"This seems an evident inadvertence, but no one called the attention of the court to his error, and it is now relied upon for the reversal of the judgment. We cannot think anybody was misled; the error seems to have passed unnoticed at the time, and we may well assume that on both sides the parties either understood the judge to be giving the instruction requested, or they corrected the error in their own minds, and assumed that the jury understood the instruction as he intended it. We do not think the judgment should be reversed for this error."
Of a somewhat similar error, shown in Robertson v. Hayes, 261 Mich. 200, 205, 206, we said:
"If appellant's counsel observed this slip of the trial court when charging the jury, surely they should have called his attention to the same in order that it might be corrected. On the other hand, if counsel did not notice the inadvertent mistake, it would seem rather farfetched to assume that the members of the jury heard and literally followed the charge and were misled thereby."
No reversible error appears. The judgment is therefore affirmed, with costs to plaintiff.
DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, KELLY, and CARR, JJ., concurred.
BOYLES, J., took no part in the decision of this case.