Bush v. Barnett

Harrison, J.— The defendant was the proprietor of a line of stage-coaches running between Hydesville, in the county of Humboldt, and Laytonville, in the county of Mendocino, and on the 2d of October, 1888, received the plaintiff as a passenger to be conveyed in one of his coaches over a portion of the route. While making this trip, the coach was overturned, and the plaintiff received certain injuries thereby, for which she brought this action, and recovered a verdict of nine hundred dollars. From the judgment entered thereon, and an order denying a new trial, the defendant has appealed.

The main proposition urged upon this appeal is, that the court erred in its instruction to the jury, that the proof by the plaintiff that she had been injured “ would cast upon the defendant the burden of proving that the injury was occasioned by inevitable casualty, or by some other cause which human care and foresight could not prevent.” There was no direct evidence of the immediate cause of the overturning of the coach, other than that while-driving in the night-time down a steep hill one of the horses became frightened and began to kick, and thereupon the team began to run until it got beyond the control of the driver, and ran down the hill until the coach struck some obstacle which upset it and threw the plaintiff to the ground. Upon these facts the appellant insists that it was incumbent upon the plaintiff to show what was the real cause of .the accident, or at least to give evidence in disproof of the proposition that it was caused by some inevitable casualty; that in the absence of any affirmative evidence that the accident was caused by some negligence on the part of the defendant, the jury should have been instructed to find a verdict in his favor.

It is, however, a well-established rule that a common carrier is liable for any injury caused by his negligence, [204]and that upon the proof of the injury, the presumption is, that it was the result of some negligence upon his part, and that if he would absolve himself from liability therefor by showing that the injury resulted from some unavoidable accident, or from some cause beyond the power of human care or foresight to prevent, such defense is an affirmative one upon his part, which the rule as to the burden of proof requires him to establish by a preponderance of evidence, as in any other affirmative defense. This rule was very clearly enunciated in Boyce v. California Stage Co., 25 Cal. 460, and has since been affirmed in Lawrence v. Green, 70 Cal. 417; 59 Am. Rep. 428; Treadwell v. Whittier, 80 Cal. 583; 13 Am. St. Rep. 175. A mere reference to these cases, without repeating the arguments therein presented, is sufficient to show that such is the established rule in this state.