152 N.E. 726 | Ohio | 1926
The question presented to this court is whether the res ipsaloquitur rule has any application in this case.
The contention of counsel for plaintiff below is that the accident happened through an instrumentality or agency which was under the entire management or control of the company, and that the breaking of the glass was caused by an unusual jerk, together with the crowded condition of the car, which injury would not have taken place if the company had exercised due care. Counsel state their view of the legal proposition presented as follows: "The negligence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care."
Such, of course, is not a correct statement of the res ipsaloquitur doctrine.
It is stated in 29 Cyc., 624, that "the maxim res ipsaloquitur relates merely to negligence prima facie and is available without excluding all other possibilities, but it does not apply where there is direct evidence as to the cause, or where the facts are such that an inference that the accident was due to a cause other than defendant's negligence could be drawn as reasonably as that it was due to his negligence."
Counsel for plaintiff seem to be relying upon the claim that the negligence of the company in stopping the car with suddenness, together with its overcrowded condition, was the negligence which caused the breaking of the glass and the consequent injury of the plaintiff, and then contend that the burden devolves upon the company to *265 overcome the presumption that such acts of negligence caused the breaking of the glass and the consequent injury.
The facts proven do not indicate that the window of the street car was broken because of any faulty construction, but rather by reason of the application of some extraneous physical force, for the only evidence offered on the subject was that the glass was broken in a round hole about six inches in diameter, "sort of punched out." It is quite clear that the breaking of the glass could easily have occurred without any negligence of the defendant. An inference may just as readily be drawn that the window was broken by the act of a third person with which the company had nothing to do. The mere fact that the company was in control of the operation of the car, with a motorman in front and a conductor in the rear, does not warrant the inference or presumption that the breaking of the window at the center of a car, in the manner in which the glass here in question was broken, resulted from the negligence of the company, thus placing upon the company the burden of overcoming such presumption.
Judgment reversed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur. *266