Where the rule of
res ipsa loquitur applies, it does
not have the effect of shifting the burden of proof.
Res ipsa loquitur means that the facts of the
occurrence warrant an inference of negligence, not that they compel
such an inference, nor does
res ipsa loquitur convert the
defendant's general issue into an affirmative defense.
Even if the rule of
res ipsa loquitur applies, when all
the evidence is in, it is for the jury to determine whether the
preponderance is with the plaintiff.
Where the terms of a request to charge are self-contradictory
and confusing, that reason is, in itself, a sufficient ground for
the trial court to reject it.
A medical specialist, called on to operate upon the patient of
another physician who has assumed the responsibility of advising
the operation, does not, as a matter of law on the facts disclosed
in this case, undertake the responsibility of making a special
study of the patient's condition or of giving advice as to
possibility of injury resulting therefrom.
35 App.D.C. 57 affirmed.
The facts, which involve the liability of a medical specialist
for injuries caused by burns resulting from an X-ray operation
performed by him on the patient of another physician, are stated in
the opinion.
Page 228 U. S. 234
MR. JUSTICE PITNEY delivered the opinion of the Court.
The plaintiff in error, who was likewise the plaintiff below,
sued the defendant in error in the Supreme Court of the District of
Columbia to recover damages for personal injuries, sustained, as
was alleged, through his negligence in the making of certain X-ray
tests upon her
Page 228 U. S. 235
body with the use of apparatus owned and operated by him. The
defendant pleaded the general issue -- "not guilty." Upon the
trial, plaintiff adduced evidence tending to prove that she was
under treatment by Dr. Kerr, a surgeon of the City of Washington,
for the fracture of a rib, claimed by her to have been caused by
the negligence of a railway company; that the company denied the
existence of such fracture, and at its request, she submitted to an
X-ray diagnosis by Dr. Grey, a specialist; that his diagnosis and
the radiograph made by him failed to disclose a fracture; that
thereupon Dr. Kerr arranged with the defendant, Dr. Erving, a
specialist in the use of the X-ray for diagnostic purposes, for an
X-ray diagnosis to be made by him; that, in pursuance of this
arrangement, she went four times to the defendant's office, the
first time at Dr. Kerr's request, and on three subsequent occasions
at defendant's request; that, on the occasion of each visit,
defendant subjected her to several exposures to the X-ray in the
effort to obtain a satisfactory picture; that, upon her first
visit, and before any exposure, she told defendant that her
employer had told her that the X-ray was dangerous, in reply to
which defendant assured her that there was no more danger to her
than to himself, and defendant's wife, who was his assistant in the
X-ray work, and who was then present, assured the plaintiff that
the defendant and his wife had never had an accident in all their
experience, and had no more reason to have one in her case than in
the thousand and more exposures previously made by them; that
plaintiff felt no bad effects from the operation by Dr. Grey, nor
from the operations by the defendant until her fourth visit; that,
during one of the exposures at the fourth visit, she felt bad
effects and a sense of faintness, and, about five hours later, her
back, which was the portion exposed to the X-ray in all the
operations by the defendant, was red and irritated; that, in the
operation by Dr. Grey, it was the
Page 228 U. S. 236
front part of the body that was exposed to the X-ray; that,
about two weeks after her fourth visit to the defendant, finding
that her back was burned and the injury developing, she returned to
him and informed him of it; that he was the first physician who saw
the burn, and he treated it from that time for two or three weeks;
that, since then, although treated by other physicians and in
hospitals, the injury has not been cured, in consequence of which
the plaintiff had not been able to work; that the injury is an
X-ray burn, and caused and continues to cause much suffering.
Plaintiff having rested, the defendant introduced evidence tending
to prove that both he and his wife had had long experience in the
use of the X-ray machine; that the machine to which the plaintiff
was exposed by defendant was an excellent machine, in good
condition; that, on plaintiff's first visit, she was told by
defendant's wife, in the hearing of defendant, that, while she and
her husband had subjected many persons to X-ray exposures, and had
never had any ill results, it was impossible, by the use of any
degree of care, to prevent occasional X-ray burns from the use of
the apparatus; that at none of the visits of the plaintiff to the
office of defendant for the purpose of being exposed to the X-ray
apparatus did she make any complaint of ill effects from the
exposure. Defendant himself testified fully respecting the
character of his machine and the manner in which it has been used
at each of the plaintiff's visits, and the length of each exposure
and the result thereof. Thereupon several practicing physicians of
experience testified as experts (having qualified by showing an
acquaintance with the literature of the subject and also some
practical experience in the use of the X-ray apparatus). Upon the
basis of the defendant's testimony respecting the character of his
X-ray apparatus and the manner of its use upon the plaintiff and
the duration of the several exposures to which she was subjected,
the experts testified that the machine
Page 228 U. S. 237
was a good one of its kind, and that the manner in which it had
been used upon the plaintiff was in accordance with the practice of
careful and prudent X-ray operators, and was as safe as exposures
to the X-ray apparatus could be made, and each of these witnesses
further testified that, according to his experience and reading, it
was not possible in the use of the X-ray apparatus to guard
absolutely against a resultant burn.
The case was submitted to the jury under instructions from the
court, and they rendered a verdict in favor of the defendant. The
plaintiff appealed to the Court of Appeals, where there was an
affirmance (35 App.D.C. 57), and she sued out this writ of
error.
The assignments of error present if effect but two
questions:
1. The plaintiff requested the trial court to instruct the jury
as follows:
"If you believe upon the evidence that in the course of the
operation of the X-ray apparatus by the defendant the plaintiff was
burned, that fact is of itself evidence of negligence on his part,
and casts upon him the burden of proving, if he can, by a
preponderance of evidence, that the plaintiff's injury was not
caused, in whole or in part, by his negligence, and in such case,
unless you find by a preponderance of the evidence that said injury
was not caused in whole or in part by the defendant's negligence,
your verdict should be for the plaintiff."
The trial judge refused this request, and, on the contrary,
instructed the jury:
"That the burden of proof is upon the plaintiff to establish by
a fair preponderance of the evidence that the burn upon her back
was caused by negligence on the part of the defendant in the manner
in which he subjected her to exposure by the X-ray."
The contention in behalf of the plaintiff is that, since the
injury to the plaintiff was caused by an agency in the
Page 228 U. S. 238
possession of the defendant, and under his exclusive management
and control, there arises from this, coupled with the fact that
personal injury resulted therefrom to the plaintiff, a presumption
of negligence on defendant's part, upon the doctrine of
res
ipsa loquitur, and that the burden is thereby imposed upon him
to overcome that presumption by a preponderance of evidence
sufficient to satisfy the jury that the injury was not caused by
negligence on his part. As will be seen, this contention includes
two propositions -- the first, that the case is a proper one for
the application of the doctrine
res ipsa loquitur; the
second, that the application of this doctrine relieves the
plaintiff from the burden of proof, and imposes that burden upon
the defendant. These two propositions were coupled together in the
requested instruction, and, upon familiar principles, no legal
error was committed by the trial court in refusing the request if
either part of it was not well founded in law.
In the view we take of the matter, it is not necessary to pass
upon the question whether the evidence presented a case for the
application of the
rule res ipsa loquitur, for the reason
that, in cases where that rule does apply, it has not the effect of
shifting the burden of proof.
The general rule in actions of negligence is that the mere proof
of an "accident" (using the word in the loose and popular sense)
does not raise any presumption of negligence; but, in the
application of this rule, it is recognized that there is a class of
cases where the circumstances of the occurrence that has caused the
injury are of a character to give ground for a reasonable inference
that, if due care had been employed by the party charged with care
in the premises, the thing that happened amiss would not have
happened. In such cases, it is said,
res ipsa loquitur --
the thing speaks for itself; that is to say, if there is nothing to
explain or rebut the inference that arises from the way in which
the thing happened,
Page 228 U. S. 239
it may fairly be found to have been occasioned by
negligence.
The doctrine has been so often invoked to sustain the refusal by
trial courts to nonsuit the plaintiff or direct a verdict in favor
of the defendant that the application of the rule where it does
apply, in raising a question for the jury and thus making it
incumbent upon the defendant to adduce proof if he desires to do
so, has sometimes been erroneously confused with the question of
the burden of proof. But, in the requested instruction now under
consideration, the matter was presented in no equivocal form.
Plaintiff's insistence was not merely that the evidence of the
occurrence of the injury under the circumstances was evidential of
negligence on defendant's part, so as to make it incumbent upon him
to present his proofs; the contention was that it made it necessary
for him to prove by a preponderance of the evidence that there was
an absence of negligence on his part.
In
Stokes v.
Saltonstall (1839), 13 Pet. 181,
38 U. S. 190,
which was an action against a stagecoach owner to recover damages
for an injury sustained by a passenger through the upsetting of the
coach, the trial court instructed the jury that
"the facts that the carriage was upset and the plaintiff's wife
injured are
prima facie evidence that there was
carelessness or negligence, or want of skill on the part of the
driver, and throws upon the defendant the burden of proving that
the accident was not occasioned by the driver's fault,"
and also, that it was incumbent on the defendant to prove that
the driver was a person of competent skill and good habits, and
that he acted on the occasion in question "with reasonable skill,
and with the utmost prudence and caution." The judgment was
sustained by this Court against the contention (p.
38 U. S. 193)
that, although the facts of the overturning of the coach and the
injury sustained were
prima facie evidence of negligence,
they did not throw upon the defendant the burden of
Page 228 U. S. 240
proving that the overturning and injury were not occasioned by
the driver's default, but only that the coachman was a person of
competent skill in his business, that the coach was properly made,
the horses steady, etc. A reading of the report shows that the case
turned upon the high degree of care owing by carrier to passenger,
and that the court did not rule that the circumstances of the
occurrence shifted the burden of proof upon the main issue. Such is
the effect that has uniformly been given to the decision.
New Jersey R. & T. Co. v.
Pollard, 22 Wall. 341,
89 U. S. 346,
89 U. S. 350;
Pennsylvania Co. v. Roy, 102 U. S. 451,
102 U. S. 455;
Inland & Seaboard Coasting Co. v. Tolson, 139 U.
S. 551,
139 U. S.
554-555;
Gleeson v. Virginia Midland R. Co.,
140 U. S. 435,
140 U. S.
443-444;
Patton v. Texas & Pacific Ry. Co.,
179 U. S. 658,
179 U. S.
663.
In our opinion,
res ipsa loquitur means that the facts
of the occurrence warrant the inference of negligence, not that
they compel such an inference; that they furnish circumstantial
evidence of negligence where direct evidence of it may be lacking,
but it is evidence to be weighed, not necessarily to be accepted as
sufficient; that they call for explanation or rebuttal, not
necessarily that they require it; that they make a case to be
decided by the jury, not that they forestall the verdict.
Res
ipsa loquitur, where it applies, does not convert the
defendant's general issue into an affirmative defense. When all the
evidence is in, the question for the jury is whether the
preponderance is with the plaintiff.
Such, we think, is the view generally taken of the matter in
well considered judicial opinions.
Kay v. Metropolitan St. Ry. Co., 163 N.Y. 447, was an
action by passenger against carrier, and the New York Court of
Appeals said (p. 453):
"In the case at bar, the plaintiff made out her cause of action
prima facie by the aid of a legal presumption [referring
to
res ipsa loquitur], but, when the proof was all in, the
burden of proof had not
Page 228 U. S. 241
shifted, but was still upon the plaintiff. . . . If the
defendant's proof operated to rebut the presumption upon which the
plaintiff relied, or if it left the essential fact of negligence in
doubt and uncertainty, the party who made that allegation should
suffer, and not her adversary. The jury were bound to put the facts
and circumstances proved by the defendant into the scale against
the presumption upon which the plaintiff relied, and, in
determining the weight to be given to the former as against the
latter, they were bound to apply the rule that the burden of proof
was upon the plaintiff. If, on the whole, the scale did not
preponderate in favor of the presumption and against defendant's
proof, the plaintiff had not made out her case, since she had
failed to meet and overcome the burden of proof."
The rule thus declared has since been adhered to in the courts
of New York.
Hollahan v. Metropolitan St. Ry. Co., 73
App.Div. 164, 169;
Adams v. Union Ry. Co., 80 App.Div.
136;
Dean v. Tarrytown &c. R. Co., 113 App.Div. 437,
439. A similar view appears to be entertained in
Hart v.
Lockwood, 66 N.H. 541;
Boston & Maine R. Co. v.
Sargent, 72 N.H. 455, 466. The same rule has been followed in
a recent series of cases in the North Carolina Supreme Court.
Womble v. Grocery Co., 135 N.C. 474, 481, 485;
Stewart
v. Carpet Co., 138 N.C. 60, 66;
Lyles v. Carbonating
Co., 140 N.C. 25, 27;
Ross v. Cotton Mills, 140 N.C.
115, 120. In the
Stewart case, the court said (138 N.C.
66):
"The rule of
res ipsa loquitur does not relieve the
plaintiff of the burden of showing negligence, nor does it raise
any presumption in his favor. Whether the defendant introduces
evidence or not, the plaintiff in this case will not be entitled to
a verdict unless he satisfies the jury by the preponderance of the
evidence that his injuries were caused by a defect in the elevator,
attributable to the defendant's negligence. The law attaches no
special weight as proof to the fact of an accident,
Page 228 U. S. 242
but simply holds it to be sufficient for the consideration of
the jury, even in the absence of any additional evidence."
2. The sole remaining question is raised by the refusal of the
trial court to instruct the jury, as prayed by the plaintiff, in
the following terms:
"If you believe upon the evidence that in the ordinary and
careful operation of the X-ray apparatus upon a woman by an
operator having the requisite knowledge and skill, enabling him to
operate it with the utmost degree of safety, there is a
possibility, which could not be foreseen by such an operator, of
injury to the woman by reason of her condition or of any matter
tending to predispose her to injury in consequence of such
operation, and that such possibility was known to the defendant, or
by proper inquiry or study should have been known to him, it was
his duty to inform the plaintiff of such possibility before he
operated upon her, and if you further believe upon the evidence
that he failed to perform such duty, or that, in the performance of
the operation, he failed to exercise the skill and care required of
him as such operator, and that the plaintiff was thereby injured,
your verdict should be for the plaintiff."
The terms of this request are self-contradictory and confusing,
dealing, as it does, with a possibility of injury to the plaintiff
"which could not be foreseen" by the defendant, and combining
inseparably with it the hypothesis that "such possibility was known
to the defendant, or by proper inquiry or study should have been
known to him," and, for this reason alone, it was properly rejected
by the trial court. But, besides this, it does not appear that
there was any evidence on which the jury could properly base a
finding that there was danger of injury to the plaintiff by reason
of her condition or of any other matter tending to predispose her
to such injury; nor to sustain a finding that such possibility was
known to the defendant, or by proper study or inquiry should have
been known to him. Nor could it be
Page 228 U. S. 243
said as matter of law that defendant had undertaken any duty
requiring him to make special study or inquiry respecting
plaintiff's condition or the possibility of injury to her, or to
advise her of such possibility of injury, for there was testimony,
already referred to, that would have warranted a finding that Dr.
Kerr had assumed the responsibility of advising the plaintiff
respecting the propriety of her submitting to the operation.
No error being found in the record, the judgment is
Affirmed.