Byrne v.Boadle

Court of Exchequer,1863

2 H.& C.722,159 Eng.Rep.299

[Action for negligence.The plaintiff’s evidence was that he was walking in a public street past the defendant’s shop,and that a barrel of flour fell upon him from a window above the shop,knocked him down,and seriously injured him.There was no other evidence.]

… First,there was no evidence to connect the defendant or his servants with the occurrence….It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant,or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant.[POLLOCK,C.B.The presumption is that the defendant’s servants were engaged in removing the defendant’s flour’ if they were not it was competent to the defendant to prove it.]

Secondly,assuming the facts to be brought home to the defendant or his servants,these facts do not disclose any evidence for the jury of negligence.The plaintiff was bound to give affirmative proof of negligence.But there was not a scintilla of evidence,unless the occurrence is of itself evidence of negligence.There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration.[POLLOCK,C.B.There are certain cases of which it may be said res ipsa loquitur,and this seems one of them.In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence,as,for instance,in the case of railway collisions.]

At the trial before the learned Assessor of the Court of Passage at Liverpool,the evidence adduced on the part of the plaintiff was as follows: – A witness named Critfchley said: “On the 18th July,I was in Scotland Road,on the right side going north,defendant’s shop is on that side.When I was opposite to his shop,a barrel of flour fell from a window above in defendant’s house and shop,and knocked the plaintiff down.He was carried into an adjoining shop.A horse and cart came opposite the defendant’s door.Barrels of flour were in the cart.I do not think the barrel was being lowered by a rope.I cannot say: I did not see the barrel until it struck the plaintiff.It was not swinging when it struck the plaintiff.It struck him on the shoulder and knocked him towards the shop.No one called out until after the accident.” The plaintiff said: “On approaching Scotland Place and defendant’s shop,I lost all recollection.I felt no blow.I saw nothing to warn me of danger.I was taken home in a cab.I was helpless for a fortnight.” (He then described his sufferings.) “I saw the patch clear.I did not see any cart opposite de-fendant’s shop.” Another witness said: “I saw a barrel falling.I don’t know how,but from defendant’s.” The only other witness was a surgeon,who described the injury which the plaintiff had received.It was admitted that the defendant was a dealer in flour.

It was submitted,on the part of the defendant,that there was no evidence of negligence for the jury.The learned Assessor was of that opinion,and nonsuited the plaintiff,reserving leave to him to move the Court of Exchequer to enter the verdict for him with ￡50 damages,the amount assessed by the jury.

POLLOCK,C.B.We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff.The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise,but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident.Suppose in this case the barrel had rolled out of the ware-house and fallen on the plaintiff,how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a ware house to take care that they do not roll out,and I think that such a case would,beyond all doubt,afford prima facie evidence of negligence.A barrel could not roll out of a warehouse without some negligence,and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous….The present case upon the evidence comes to this,a man is passing in front of the premises of a dealer in flour,and there falls down upon him a barrel of flour.I think it is apparent that the barrel was in the custody of the defendant who occupied the premises,and who is responsible for the acts of his servants who had the control of it;and in my opinion the fact of its falling is prima facie evidence of negligence,and the plaintiff who was injured by it is not bound to show that it could not fall without negligence,but if there are any facts inconsistent with negligence it is for the defendant to prove them.

Notes and Comments:

1.Why would it be necessary,as the court states,that the fact that there was no evidence whatsoever on the part of defendant,as a condition for the doctrine of res ipsa loquitur to be employed.What if the defendant could show that none of the servants or himself was present in the warehouse and nothing was wrong with the jigger-hoist mechanism that held the barrels in place? What could be a situation where the plaintiff would still be required that evidence be presented for establishing negligence under the rule given in Byrne?

2.Res Ipsa Loquitur.“The thing speaks for itself.” This is an old phrase,found in Cicero and other ancient writers;and it has been used from time to time in other connections in the law.Chief Baron Pollock was an English gentleman,with a classical education,as was counsel to whom he spoke.Just what did he mean by it? This question has been put in Latin: Res ipsa loquitur,sed quid in infernos dicet?[“The thing itself speaks,but what in the hell did it say?]There has been considerable denunciation of the use of the phrase in negligence cases.See,e.g.,Bond C.J.(dissenting in Potomac Edison Co.v.Johnson,160 Md.33 (1930)): “It adds nothing to the law,has no meaning which is not more clearly expressed for us in English,and brings confusion to our legal discussions.It does not represent a doctrine,is not a legal maxim,and is not a rule.” Also Lord Shaw commented,in Ballard v.North British R.Co.,(1923) Sess.Cas.H.L.43,56: “If that phrase had not been in Latin,nobody would have called it a principle.”

Sir Jonathan Frederick Pollock (1783～1870),Lord Chief Baron of the Exchequer

3.The first attempt to state the rule of Byrne v.Boadle was that of Chief Justice Erle in Scott v.London & St.Katherine Docks Co.,(1865): “There must be reasonable evidence of negligence;but where the thing is shown to be under the management of the defendant or his servants,and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care,it affords reasonable evidence,in the absence of explanation by the defendants,that the accident arose from want of care.” These remain the two core requirements of the doctrine,although you will sometimes see a third requirement listed in opinions.

4.Pay attention to the difference between res ipsa loquitur and the socalled “principle” of shifted burden of proof.When a claimant (the plaintiff)carries his burden of proof by adducing evidence in court,it will now be the turn for the other party (the defendant) to counterargue by offering his evidence in rebuttal,and the burden is shifted to him.If he has strong evidence to show that plaintiff’s evidence must fail,then the burden is shifted back to the plaintiff,until finally a most convincing evidence is presented.For example,in a criminal case involving murder with a bloody knife,the prosecution says to defendant,“Your name is inscribed on the knife,so the knife must belong to you,and none other;therefore,you must be the perpetrator.” The defendan t may argue that he is a maker of knives all of which carry his name,and the prosecution fails to prove that this particular knife is owned or used by defendant in the murder.The prosecution may go further in this case by arguing on the blood stain or fingerprints on the knife,and so on.A recent development on the subject of proving a case calls for a “reversed burden of proof” which,stated briefly,says in certain cases (such as tort and even beyond) it is so difficult for a plaintiff to gather evidence that is necessary to assign the initial burden of proof to the defendant.In other words,“When I say you are wrong,I don’t need to say why and how you are wrong;you must say why and how you are not wrong.” And it is called by some as a “principle.” This is not,and cannot,be a principle.It is at most an exception to the principle.