BGHZ 24, 21 Great Civil Senate (GSZ 1/56) Straßenbahn-decision = NJW 1957, 785 = VersR 1957, 288, 517, 783 = JZ 1957, 543 See JZ 1957, 535 for an article by Wieacker
04 March 1957
Translated by:
F.H. Lawson and B.S. Markesinis
Professor B.S. Markesinis


1. The case submitted to the Great Senate for Civil Cases is based on the following facts:

The plaintiff took part in a family celebration and intended about 1.30 a.m. to return on the tramway run by the defendant enterprise from the ‘Apotheke’ stopping-place. When he tried to mount the forward platform of the tramcar he fell: he was run over by a car and his right foot so severely injured that his leg had to be amputated below the knee. The plaintiff made the defendant, the driver, and the conductor of the vehicle responsible for the damage and put forward the following grounds for his claim:

The fall occurred because the tramcar started too soon. The conductor gave the departure signal and the driver started although both could have seen that the plaintiff was still just about to mount the forward platform. He had stood in front of the door when it started and had already grasped both the entrance handles. The driver did not stop immediately on getting the emergency signal from the conductor.

In his action the plaintiff demanded damages from the defendant, thedriver, and the conductor of the tramcar.

The defendant, the driver, and the conductor admitted his claims in part. . . Otherwise they claimed that the action should be dismissed and urged that:

The conductor gave the signal to start and the driver set the tramcar in motion only after the invitation to enter had been given and no one else was prepared to enter. The plaintiff had been standing by a group of persons who had not intended to ride, but had then hurried after the moving tramcar and tried to jump on. When the emergency signal was given the driver stopped at once. The plaintiff had been drunk and had only himself to blame for the fall.

The Landgericht allowed the claim, reduced to one-half.

On appeal by the plaintiff and counter-appeal by the various defendants, the Oberlandesgericht dismissed the action against the driver and conductor and declared the defendant tramway company liable to pay compensation up to two-thirds.

On appeal the defendant company moved for a complete dismissal of the action.

2. It was disputed in the first place whether the defendant company also was liable under § 831 BGB for the damage caused by its employees. This question required examination because the plaintiff’s claims were not completely supported by the Reichshaftpflichtgesetz, in particular in so far as he demanded damages for pain and suffering.

The Court of Appeal found that the defendant company was responsible under § 831 BGB for the damage to the plaintiff, because the driver, and perhaps also the conductor, had caused the physical injury unlawfully and because the defendant company had not produced the proof necessary for exonerating itself under § 831 I sentence 2, case 1 BGB from liability for its ‘employees’. The Court of Appeal came to the conclusion that the way the fall occurred was not clear. It was possible that the plaintiff’s allegations of fact were correct, but it was also possible that the accident happened in the way described by the defendant. In view of this negative result of the evidence, the Court of Appeal felt that the possibility could not be excluded that a causal connection did exist between a presumable failure of choice and supervision on the defendant company’s part, and the occurrence of the damage (§ 831 sentence 2, case 2 BGB).

3. The Sixth Civil Senate had doubts whether to follow the Court of Appeal’s findings of law. The doubts were directed above all against the view that an ‘employee’ (for the purposes of § 831 BGB) engaged in tramway or railway traffic did damage unlawfully merely by causing physical injury. It is a matter for discussion whether the basis of the unlawfulness must be further gone into in order to show whether the conduct of the employees is objectively contrary to good traffic practice. For that purpose, reference is made to the traffic rules which regulate the conduct of participants in traffic in ever-greater detail. Recourse must also be had to the legal concept of social adequacy and to developments in modern criminal theory, more especially because according to this the concept of negligence includes essential requirements which relate to unlawfulness and not to fault. If a finding of unlawfulness in traffic accidents does not automatically follow from the resulting consequence but (is satisfied) only if a breach of the traffic regulations has occurred, then it seems probable, in view of the report laid before us, that the conception of the burden of proof hitherto followed in applying § 831 BGB can no longer be upheld. That must be true in particular of cases which resemble the one in question and are distinguished by the fact that, in view of the failure to clarify what happened on the occasion of the accident, no objectively irregular conduct on the part of the ‘employees’ can be established.

The Sixth Civil Senate attaches fundamental importance to the clarification of these questions of law. In accordance with § 137 GVG it submits them for decision to the Great Senate for Civil Cases and formulates them as follows:

Does a person employed in tramway or railway traffic do damage unlawfully to another within the meaning of § 831 I BGB merely by injuring his life, body, health, or property? Or is it a further condition of unlawfulness that the participant employed in the traffic conducted himself in an objectively irregular way? Is the employer who fails to exonerate himself from the charge of defective selection or supervision liable under § 831 BGB even if according to the evidence the possibility remains open that the ‘employee’ observed the objective duties of care and, in particular, the rules governing highway or rail traffic?

1. When § 831 BGB makes the employer’s liability depend on whether his ‘employee’ did unlawful damage to another person in executing his task, this requirement connects it with the factual situations of the law of delict in which the unlawful acts involving a duty of compensation are described and delimited. Not every doing of damage produces liability, but only such as falls within a liability situation of the law of delict, and, therefore, is an ‘unlawful act’ in the sense of §§ 823 ff. BGB. Accordingly, for the purpose of traffic accidents as here in question, in the first place a reference is needed to § 823 BGB, especially § 823 I. Claims for damages are constantly recurring from injuries to life, body, health, or property in tramway and railway traffic. Now the wording of § 823 I BGB requires that the injury to the enumerated legal interest be unlawful, that is to say repugnant to the legal order. The legislator, however, when describing in legal terms the factual basis of illegality, indicates that he regards the breach of the legal interests listed in § 823 I BGB as normally unlawful. By adding ‘unlawful’, however, he indicates that the mere breach does not necessarily involve unlawfulness, but that unlawfulness can for special reasons not exist. It may be questionable whether that indication was needed. It is certainly useful in applying the law, by making judges attentive to the fact that any factual description of unlawful conduct is bound to be incomplete and that therefore they are under a duty to examine whether a finding of unlawfulness based on a fulfilment of the factual conditions must be withdrawn on special grounds. Further, the BGB does not provide an exhaustive formulation for defining when there is a legal justification. The initial provision about consent as a justification was struck out in the discussion of the draft because it was desired to leave to practice the task of marking out the limits of justification. Moreover, the jurists and judges have also developed slowly those principles to which they may have resort for the purposes of excluding unlawfulness, such as on the basis of negotiorum gestio, the protection of vested rights, or the balancing of interests. There is, therefore, no exhaustive legal catalogue of justifications, no numerus clausus which would set limits to legal development. Accordingly, the matter must be gone into now that the report of the Sixth Civil Senate has submitted for discussion the question whether, in the special field of tramway or railway traffic, conduct fulfilling on its face the factual condition of § 823 I BGB must no longer be adjudged unlawful if it was in harmony with the legal regulations laid down for the traffic.

The line of thought in that direction found in the report must in principle be approved. The draftsmen of the BGB may indeed not have recognized that these are matters for discussion which concern objective unlawfulness and not merely fault in the sense of personal blameworthiness. Only with the technical development of traffic and the increase in its dangers did modern mass traffic produce problems calling for regulatory legislation. The legislator was faced with the need to regulate by increasingly detailed provisions the duties of participants in traffic, so that the possibilities of danger should be reduced to a minimum. At the same time, the legal provisions dealing with liability for risks were developed in order to apportion with social fairness in their economic effects the dangers and risks rendered inevitable by modern traffic. In the process, it was more and more recognized that what was in question was not a liability for wrong but a duty on those in control of dangerous operations to assume responsibility for certain typical risks. With that legal development there is no longer any place in the law of delict for a doctrine that looks upon unavoidable injuries in tramway and railway traffic as unlawful injuries to persons or property and denies liability only for lack of fault. The legal order, in permitting dangerous traffic and prescribing in detail to its participants how to conduct themselves, declares that conduct conforming to those prescriptions is within the law. It is not right that conduct which takes full account of the orders and prohibitions of the traffic regulations should nevertheless be adjudged unlawful. The actual consequences do not afford sufficient ground for it, for, in deciding whether conduct is unlawful within the meaning of the BGB provisions about delicts, one cannot leave unconsidered the act that produced the consequences. The rule must therefore be laid down that orderly conduct of a participant in tramway or railway traffic conforming to traffic regulations does not produce unlawful damage.

Whether the result implies a special application of the legal idea of so-called social adequacy may be left unanswered. Since the question here is restricted to the field of traffic law, there is also no need to go into whether the same result could equally be obtained through reliance on modern criminal theory, which splits up the concept of negligence by treating the enquiry into the observance of objectively required care as appertaining to unlawfulness, and only the question whether the disapproved conduct should be imputed to an individual doer as an inquiry into fault. Doubt must in any case be expressed as to whether, if this complex concept of negligence in modern criminal theory were to be taken over into civil law, in the law of civil responsibility, also, under cover of a special enquiry into fault, a special standard of judgment should be imposed on the conduct of the doer of damage that took account of his personal characteristics. That might, indeed, appear to harmonize the legal concepts, but it would not allow for typical differences which arise from the specific characteristics and purposes of two different branches of the law. In particular, this view would not be in accord with the provisions of § 276 I 2 BGB as it has always been understood in applying the law.

2. The question submitted to the court now makes it necessary to enquire what are the consequences produced by the standpoint adopted for apportioning the burden of proof. Here it must be recalled that the legislator, by establishing a separate factual basis for delicts, intended to lighten the judges’ task of examining whether a wrongful act exists or not. Unlike the cases where delict is governed by a general clause, leaving a wide scope for judicial interpretation (§§ 823–25 BGB), in describing casuistically the wrongs giving rise to liability, the legislator affords a solid basis for applying the law, by suggesting, at least provisionally, the criterion of unlawfulness. Thus, an injury to one of the legal interests especially named in § 823 I BGB to which the law affords a preferred protection, needs a special justification if it is not to be adjudged unlawful. That applies irrespective of whether the act was done intentionally. This relation of rule and exception established as part of the system of our law of delict and upheld in its application has, in accord with the recognized principles of the law of evidence, the consequences that the proof of a justification is for the person who infringes a protected legal interest. In this respect, the justification afforded by conduct according to rules in tramway and railway traffic can claim no separate status.

This apportionment of the burden of proof in applying § 823 I BGB to traffic accidents means that the doer of damage can provide a basis for justification by proving that his conduct conformed to traffic rules. If the proof is supplied, proof of fault ceases to have any substance, because there is to start with no unlawful infliction of injury. If on the other hand the question whether his conduct in traffic was regular is not cleared up, one starts with an unlawful injurious act. The question of liability however is not yet decided; for § 823 I also requires the injurious act to have been intentional or careless. The injured party must therefore prove that the doer acted intentionally or negligently, in the meaning of § 276 I 2 BGB, that is to say omitted to take the care required in daily intercourse. For that enquiry also it will, of course, be essential to know whether the provisions of the traffic regulations have been observed. That the question of conduct according to the traffic rules can be significant for unlawfulness and fault is due to the shape and legal classification of the concept of negligence. For the practical application of the law it remains that the injured party must prove in full the conditions of a claim for compensation under § 823 I BGB and that accordingly—unless there is a prima-facie case—an insufficient elucidation of the facts is to his disadvantage.

The apportionment of the burden of proof in applying § 831 BGB is different. There the legislator consciously made the employer’s liability depend only on the ‘employee’s’ acting unlawfully and not also on his doing the damage intentionally or negligently. In so far therefore as concerns the ‘employee’s’ conduct, only those principles governing the burden of proof apply that affect the sphere of unlawfulness. Thus, the injured party must prove that the ‘employee’ by an adequately causal act injured one of the legal interests protected in § 823 I. On the other hand, it is for the employer to prove that the ‘employee’s’ conduct was regular, because it conformed to the legal rules of tramway or railway traffic. So far, doubt is to the disadvantage of the employer. On the other hand, if regular conduct of the ‘employee’ is proved, the conditions for a claim under § 831 BGB are unfulfilled, so that there is no longer any need to go into whether proof can be provided that there was no causal connection between the prima-facie presumption of faulty selection or supervision, and the damage. From that last-mentioned point of view the Reichsgericht had denied the employer’s liability when the judge was convinced that even a carefully chosen and supervised ‘employee’ could not have acted differently in the given case. That the production of the exoneratory proof under § 831 I and II BGB makes it unnecessary to go into the question of unlawful injury is self-evident.

It is clear that as regards a traffic accident the cause of which remains obscure, the regulation of the burden of proof set out above makes it better for the injured party if the ‘employee’ and not the employer himself has caused the accident. In the latter case the employer’s liability is as a rule excluded, because no fault can be established, whereas where it is caused by the employee, the employer is liable if he cannot exonerate himself from the charge of imperfect choice and supervision. This preferential treatment was clearly intended by the legislator, for there is here a certain allowance for the fact that otherwise the injured party’s legal position is quite unfavourable because exoneration is possible and usually successful. It is precisely for that reason that it would be wrong in applying the law to do away with the part favourable to an injured party in the regulation of the BGB of delictual liability for ‘employees’. If one observes that emphasis is there placed—even though incompletely—on responsibility for enterprise risks, it is not unfair to impose on the one in whose sphere of influence the risk originated the burden of proof about the way the damage occurred, which he is usually, though not always, in a better position to satisfy than the one to whom it occurred. Also so far as the provision of ‘appliances and implements’, which include the means of transport, is concerned, the law has for the same reason imposed on the employer within the framework of § 831 BGB an enhanced duty of elucidation and proof. If the evaluation of the employee’s conduct is under discussion, attention must also be paid to the point of view that the employee—that is the meaning of the reversal of the burden of proof—must be considered to have been unfit for his task, until the employer proves that he showed the care described more fully in § 831 I 2 BGB.

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