*1 camp ownership possession question and an- of the allowance of this error and these emphasized by fact contents. The denial was swer is reason exceptions are presiding charge to sustained. Justice’s the def- jury, he overlooked instructions on pos- possession and constructive inition of exceptions noted as the Inasmuch apply the ref- session, to enable aside, sustained, the verdict is set are did erence statute and that extent Railroad Com Hayden v. Maine Central posses- primary question of submit to it a 681, 442, 445, and dis 108 A. pany, 118 Me. allegedly goods sion of the stolen. necessary. exception 8 is not cussion conclusive challenged left as answer was exception is sustained. of that 14, This 2, 7, 9, 10, 15, issue. sus- Exceptions and 16 tained. moment, exception 8 for the Passing
exceptions 10 were taken 9 and 4, 5, 6, 11, 12, 13, and 17 Exceptions in his the evidence Court’s reference to through overruled. cottage
charge jury, Rich “Marion
(camp) to as the was referred instruc embodying in his
cottage.” Without ownership, defini
tion a discussion of posses constructive
tions of
sion, in the case was controlling element Exceptions 10 are 9 and
left in a vacuum.
sustained. through Exceptions through and 17 CORBETT, M. Walton Corbett Elizabeth denial were reserved to Court’s upon the requested bearing instructions accomplice a witness of an
status Olive CURTIS. State, accomplice’s tes- corroboration of Supreme Judicial Court Maine. testimony timony, weight given Jan. mo- accomplice, an examination turning evi- accomplice in State’s tives of an
dence, non- innocence and presumption of evi-
production by of available the State
dence. instruction the Court’s
While raised, hav except that
upon points so available non-production of to do with
evidence, in the terms which were properly and requested, they were
accused covered, court was not and the
adequately Ernst, 150 repeat them. State
bound
The instruc
449, 459,
Me. requested to absence basis had no factual to the State
available Exceptions properly refused. and was overruled.
12, 13, through 23 are and 17 which were
Denied had to do 14, 15, and 16 exceptions
basis bearing deficiency of evidence *2 verdicts, notwithstanding
ments
and for
new
presiding
trials based on refusal of the
give
requested
certain
Justice
to the
jury.
were tried in
cases
Superior Court,
County
within and for the
Oxford,
resulting
judgments
*3
plaintiffs. Plaintiff,
Corbett,
Elizabeth M.
lady
years,
of 54
from her home in
drove
South Paris to the defendant’s residence
purpose
enabling
West Paris for
Curtis,
Mrs.
at the time
was
years
age and in
permit,
practice
driving.
learner’s
her
previously
Mrs. Curtis had
taken driver’s
training
and had done some
prac-
driving but felt that she needed more
Upon
tice in turning
backing
and
the car.
plaintiff’s
of Mrs.
arrival at the home
Curtis in West Paris the two ladies entered
automobile. Because of
defendant’s
steepness
driveway
Mrs. Corbett
yard
backed
car
and after it
out of the
got
took over
on Pioneer Street Mrs. Curtis
operation
of the motor vehicle with Mrs.
passenger’s
side of the
Corbett seated on
driving they
front seat. With Mrs. Curtis
proceeded
and entered
along Pioneer Street
they
highway,
the main
then
went
Thalia Curtis who lived near-
home
by,
briefly stopping
purpose of
directions,
they
after which
quiring about
dirt
continued
to a one-lane
road
Little Andro-
bridge spanning
led
toward
was a
Their destination
scoggin River.
pit
the river
gravel
on the other side of
understood there was
which Mrs. Curtis
parking
ample
practice turning and
room to
point
bridge defend-
the car. At a
near the
car,
Curtis,
operating the
ant
who was
stopped
plaintiff Corbett
and discussed with
con-
should
as to whether she
Linnell, Auburn,
plaintiffs.
bridge.
Frank
operate
W.
the car across
tinue to
question it
After a brief discussion
Platz, Lewiston,
for defendant.
John
con-
decided that Mrs.
should
was
Curtis
the car. Accord-
tinue in the
WILLIAMSON,
J., C.
and TAP-
Before
bridge was
ing
photograph
to the
LEY,
DUFRESNE,
and
MARDEN
JJ.
bridge sufficient width
an old wooden
As the
an automobile.
accommodate
TAPLEY, Justice.
it sudden-
being driven over
midway
right at about
ly
veered
us on defendant’s
These cases are before
the river a short
dropped
into
judg-
across
appeals
denial of motions for
from
neces-
person
unlicensed
party
Neither
could ex-
vision over the
distance below.
assistance,
safety,
render
plain why
suddenly changed
sary
its di-
the car
be,
promptness.
into
if need
with reasonable
rection
went off
* * *
unlicensed
It is also clear
river.
operating
the vehicle
doc-
(1)
The defendant contends
‘for
company
with the
assumption
(2)
applies;
trine of
of risk
becoming familiar with
contributory negli-
guilty
vehicle,
a motor
handling
law;
gence
(3)
as a
matter of
taking out
license
preparatory to
was insufficient to
a find-
warrant
pur-
necessarily for
sole
driving,’ not
proxi-
negligence of defendant
pose
the vehi-
becoming
familiar with
plaintiff’s injuries.
mate cause of
cle,
present in
purpose must be
but that
mind.”
his
operating
The defendant was
*4
by
permit
motor vehicle
of a learner’s
particular
circum
Under
provisions
by authority
under
of 29
case,
plaintiff nor
stances of this
neither the
M.R.S.A., Sec. 537:
explain what
the defendant are able to
person
operate
“No
shall
a motor vehi-
suddenly
caused the car
veer off
to
upon any way
cle
in this
unless
State
The
bridge and into the stream below.
according
licensed
This
to this Title.
plaintiff
prove
must first
prevent
operation
section shall not
apparent
that it can
the defendant and
is
person,
motor vehicle
an unlicensed
through
be
the doctrine of
done
years
less
age
not
than 15
who holds an ipsa loquitur.
permit, if
a li-
riding
instruction
beside
ipsa loquitur,
“The
of res
‘the
maxim
censed
in said vehicle for the
practice, be
thing
speaks,’ might,
itself
purpose
becoming
familiar
with
translated,
spells negligence.’
‘the accident
and handling
pre-
of a motor vehicle
dispense
requirement
It
does not
paratory
taking
driving,
to
for
out license
negligence must
alleges
that the one who
provided
person
such
has
unlicensed
prove
rule
it.
It is a
of evidence
revoked,
theretofore had
license
proof.
ap-
relates
the mode of
It is
suspended
finally
or
refused.”
plicable,
an unex-
where there has been
necessity
The
being
accident,
plained
and the instrument
automobile on this occasion was because of
injury
manage-
caused the
was under
statutory requirement
Ac-
of Sec. 537.
defendant,
ment
and in
or control of
order,
cording
pre-trial
“The
ordinary
the accident
course of events
prac-
of the ride
defendant
was to enable
happened
would not have
if the defendant
driving.”
tice
is well
The intent of Sec. 537
supplied).
(emphasis
care.”
used due
Portland,
expressed in
City
Blanchard v.
Plants,
Bottling
Stodder v. Coca-Cola
said,
pages
ments she must the defendant had out, straightened you got Q. And then Chaisson, supra, or “exclusive control” as in bridge, that started across Stodder, supra and expressed as it is in Corbett right And was Mrs. ? what Cratty, supra, “management or control.” doing then? Perry Jay, in Inc. v. E. This court &J. Co., Inc., Metal 161 Me.
Iron & sitting A. there. She considering A.2d in ipsa loquitur, approval those res cites with passenger’s side? Q. Sitting requiring cases the vehicle to be under the defend- “management and control” of Yes. A. Williams, su- It Chaisson v. ant. also cites pra, that vehicle must be which holds what caused you know Q. When—Do opera- under the “exclusive control” accident? that states In view of the some tor. fact A. No. control,” think we
have rule of “exclusive maxim of res that where Maine has the happen? did don’t—what Q. You requirement of “un- ipsa loquitur that the did, thing you the next What was preferable management control” is der happening? or remember ques- pertinent control.” The to “exclusive manage- is, thing, have we were did the defendant next tion now A. river. the mo- vehicle at and control of the ment ipsa loqui- you got properly there. instructed how Q. You don’t know lia- finding of by their tur doctrine and you hear a crash ? Did they determined bility it is obvious Yes. A. was in factually the defendant at the vehicle management and control % % jfj >jC ‡ mishap. time Q. Driving straight ahead? Yes. that the contends further The defendant she because recover plaintiff should not Mrs. Q. Having any conversation further, she and, the risk assumed Corbett? aas contributory negligence guilty A. No.” law. matter of plain- testimony in the case which There is Cur- that Olive discloses The evidence plaintiff, ly fact that the demonstrates the years, ob- tis, lady Corbett, they approached the Mrs. September permit in tained a driver’s the motion of some control over asserted previous years 1962, some five by putting on the wheel her hand the car a teacher. training from had taken some she right. There guiding the car to the oc- her husband had driven with She also indicate nothing in the evidence to plaintiff, and twice with casionally they after had started across incidentally, a niece Corbett, who, Mrs. complete management trip which Curtis’ husband. of Mrs. anyone than other of the vehicle was the accident day of the ladies took Curtis, There were Mrs. the defendant. that Mrs. Cur- by the fact was occasioned inter- suggestions, physical no advice or parking experience tis desired more ference influ- en- Mrs. Corbett backing the car. When by the the vehicle encing the control of aware day she was car that tered the bridge. traversing driver while it was previous had that Mrs. Curtis fact that she Mrs. Corbett testified in substance car, rid- experience driving having *6 just exerted some control over the vehicle previous occasions. her on two den with entering bridge. before onto fact cognizant She also was place a go to trip was to of “Q. you got Was that before prac- able to would be where Mrs. Curtis bridge ? backing. turning and tice Yes, A. before gotwe bridge. assumption of considering In Q. And then you what did do? Richards, 324 risk, in Richards v. the court A. Then I proceeded sat back and we 402, pages 401 and (Ky.), at 400 S.W.2d along, proceeded she herself. along states: Q. driving she straight Was across a danger, presumes some “The term the bridge ? implies thereof, ordinarily knowledge and and ac- danger appreciation of the A. Yes. Assumption quiescence therein. 7 C.J.S. Q. Wht next occurred? applies p. The doctrine Risk 137. of reasonably whether may elect one where up I don’t know. I woke par- to a expose himself he or not shall water, thing you next know.” doctrine, danger. To invoke ticular shall danger or that the risk whether or not the defendant it is essential by, to, appreciated management or was and control of ve- have been known 174, pp. Negligence plaintiff. hicle it was 65 when veered off § C.J.S. 848, jury. fact one of for 851. 408 assumption of tree. held regard the crashed into a The court courts which
“Some contributory instructing his broth negligence that where Allen was risk proper terchangeable, Edgar there distinction er use the controls but is a of any improper Edgar which is mental state a risk assumption since of risk a Allen, teacher, contributory neg- In Aloi willingness, of while assume. 343, al., implies plaintiff to et al. v. Misc.2d ligence failure of sio Nelson et a 27 Also, risk a licensed exercise due care. assumed 209 N.Y.S.2d accompanying upon voluntary exposure having dan- a driver a learner’s is based permit the unlicensed ger only in order to instruct applicable and is cases where a operator. made injured might reasonably elect The unlicensed driver person inexperience or left turn and of her expose whether he should himself because turned danger. lack skill she too wide ‘Negligence’, 38 Am.Jur. pole. p. a The case caused car to strike 847. § accompany holds that a licensed Cornett, “In Ky. Porter 206 v. 306 permit assumes one with a learner’s 83, 85, wrote, legal their S.W.2d we ‘In inexperience permittee’s the risk of the effect, the two doctrines identical. are injuries damages cannot recover They deny recovery inexperience lack of caused or injured person knowledge with a knowledge passenger skill. who A dangerous voluntarily places a situation able of the the driver had facts that himself in position a takes the where he permit a learner’s and had failed ” chances being hurt.’ driver’s test risk of assumed accident which occurred lack a result of driver’s solely as Highway Am.Jur.2d, 8 Automobiles skill and St. v. Skid experience. Denis Traffic, Sec. 539: more, N.Y.S.2d A.D.2d al., App.Div. Vergilia See LeFleur et op- “Generally, is licensed to one who Troquille 244 and N.Y.S.2d vehicle, voluntari- a and who erate motor (La.App.), American Ins. Universal Co. just accompanies driver has- ly a So.2d passenger 590. The assumes pur- permit received learner’s any risk incident to the lack of driver’s pose teaching drive, him assumes known, and inexperience skill or should inexperience risk of the learner’s known, have been but to him not as to damages personal not recover acts of injuries by the lack of skill caused car not in attributable to lack of skill or In some inexperience the learner. experience. assumption risk car cases, circum- held under the has been ries with it knowledge taking op- stances that licensed motor vehicle *7 chance, while negligence in there is un person driving accompanying a erator foreseen unexpected incident, or the cir permit under an instruction to enable may may cumstances of which not or require- comply statutory latter to with part demonstrate a act negligent of on law, not, does a as- ments as matter of operator. opera negligent The risk of permittee’s negli- sume the risk by is not if it is assumed not caused assump- gence, but that the of lack of skill inexperience. or jury.” tion of risk is for the Richards, supra, Edgar authority In Richards holds of weight The op Al- purchased Richards an automobile an person unlicensed riding that len, brother, driver, his in instructing a licensed him for the of erator him a be- teaching Edgar to drive. had of operation car assumes the risk permit. operating ginner’s Edgar, while of injury by if it the lack is occasioned car, put “too is experience his foot hard” the driver. This skill and of so, from accelerator and lost control of the the action however, not if results the rule of negligence part of the driv an act of on The proper. these er not lack of skill or circumstances attributable to his found, apparently proper under experience. person a car When a enters Court, proven by plaintiff purposes supervising and assist all of res permit a learner’s elements ing one part practice thereby satisfy determined on driving, and also to no there was requirements of as a he Sec. assump in the lack subject matter of law rule of sufficient evidence case part inexperience Assumption tion of risk. skill or on of risk is the car was defendant in affirmative the burden of defense with proximate proof cause of accident. M.R.C.P. defendant. Rule (c); McKusick, 8.10; Field & Re Sec. sufficient evidence to warrant We find statement, Torts (2nd ed.), Sec. 496-G. jury verdict. assumption of risk under circum jury question. stances instant case is a be, entry will al., Cal.App. Roberts et al. v. Craig et P.2d 2d 1146. 43 A.L.R.2d Appeals denied. See Annotation A.L.R.2d at page Counsel for the defendant claims error on RUDMAN, JJ., did not WEBBER declining court in give sit. requested following instructions: DUFRESNE, (dissenting “A licensed motor vehicle Justice voluntarily part). accompanies a defend- permit, ant who has a learner’s in the setting the accident The factual defendant’s the purpose automobile for her received wife which the teaching drive, the defendant to as- however Let us juries not be restated. need sumes risk of the defendants’ inex- certain painted so retouch the scene perience and damages can not recover physical existing conditions significant personal injuries caused a lack of show, appear running in the do inexperience skill or of the defendant. auto- majority opinion. The account of the “The shall ride with wife was mobile in which accompany person, low- the unlicensed un- into the riding side exit made proximity Androscoggin der such and in such conditions of the Little level waters supervision he can suffi- maintain the over River “an old wooden from person unlicensed necessary an automo- for safe- cient in to accommodate width ty, assistance, be, and render need described with bile.” was further Said top longi- reasonable promptness.” having police a state officer with, wide, plank flooring tudinal 10 feet overlap- thereto, side, an addition on either carefully We have reviewed 2 feet ping sub-planking extending another charge of the presiding find Justice railing. “pretty weak” side properly that he instructed *8 center, be- that in officer testified dead degree that the defendant had suffered no longitudinal tween the dual sections of prejudicial error. space un- open planking, there was an size, could certain from which the traveler point In conclusion, out that we Thus, peek through to the distant stream. where neither occupant of the motor ve of 14 bridge the had an feet over-all width testify was able to the hicle as to cause inches, length to 3 was stated while its suddenly car the veering the to right feet, bridge maybe the the water the 25 dropping into Curtis, explanation years would be that Mrs. Cur- other Mrs. permit, during that short distance tis could a learner’s in age and straight line with- drive a while 10 to feet automobile driving her husband’s was old, right on this Corbett, years swerving out somewhat Mrs. plaintiff, the explanation ap- oper- very bridge. Such narrow her as the riding beside that Mrs. pears considers reasonable required under M.R.S.A. ator § the knowl- trip driving inexperience, to Curtis’ purpose of the undisputed the that it is keep- Corbett, had to do with edge of more Mrs. to receive permit the defendant towas pre- on the road. On backing ing the automobile turning practical experience practicing trip Mrs. Curtis was li- when her vious taking out preparatory car the Corbett, de- the latter driving with Mrs. her driving. cense for follows: scribed an incident as Initially, say majority let us that the “Q. trip anything That was there event- the characterizes course of the travel of ful occurred? bridge. the car as a sudden off veering the In no less than 5 the times it so describes once; up heading hill I the Just happening of the accident. But no witness thought get we were going [it] particularized has A so occurrence. — we a little far too disputes close reading of the record such side, right-hand just hold and I took conclusion, supports rather ‘Olive, of the says, wheel. And I “barely crawling” ference that this auto- turn little more. into road a mobile the ten fifteen feet dis- traveled And a little far out.’ You’re too point against tance to the where it crashed straightened we out the machine.” railing bridge straight line .a majority says constantly right. swerved to the Such prove negligence first of the defendant interpretation is the more reasonable only apparent and it that it can be done pre-accident evidence within factual loquitur. through ipsa the doctrine of res Mrs. Corbett admitted that (cid:127)circumstances. We admit burden immediately prior bridge entering proof proving her case proper, in cor- she had to Mrs. assist Curtis proximately caused of the defendant which recting her turn which was mak- she plaintiff’s injuries, the accident and but we taking too wide. She did this only agree do not that this could be done wheel, explaining go lit- that “we need to through ipsa the doctrine of res right.” tle more to hold of She had in the instant The evidence was suf- trial. “long enough get the wheel me headed ficiently to determine detailed straight, so I enter on a could the cause of accident without resort parties (cid:127)straight Although line.” both do court’s the rule of res and the operating aver that the defendant was n thereto jury in relation instructions to the for that of 10 distance plain- an imbalance in favor of created up side against to 15 feet to the crash tiff aggrieved defendant railing during and that Cor- time Mrs. legal wheel, error. only bett did not touch the rea- the evidence is that sonable deduction from on res trial court’s instructions car, immediately pri- positioning loquitur were as follows: bridge, entry or to its n physical Corbett, was of Mrs. assistance ve- that the motor “If finds located exact center that was not such control was under the hicle position angling towards displayed a but of this de- wholly within for- carried which Mrs. Curtis right, highway or the and it left fendant straight unexplained, automobile road by steering portion traveled ward n against upon which this then bridge. The the side of *9 it no whatever be is guest’s conduct negli- finding of could make a
jury the of the doctrine obstacle to this defendant. gence on the * * up res and comes for court such *. And if the evidence is * * * jury evaluation as a or matter undisputed this and it is contributory negligence. Not so however portion of a road vehicle left the traveled in permits the instant case the statute into and and went over the * * * operator the licensed to enter you find, it and field water so unless education; of driver in explained undertaking par- you it say will be for is * * * ticipate therein, operator it is licensed unexplained you find is vested with unexplained, under control and the vehicle was and charged duty it left the exercise the control of the necessary whenever Indeed, road, jury safety. upon would then that basis the court, pointed this out justified majority, this defend- finding That, indicated in Blanchard negligence. City guilty of Port- ant land, 120 Me. say, responsibility. your pur- will be first that the I pose of the And, general, requires there statute which as I have indicated that the operator unlicensed conflicts, no who great are no or there is holds an instruc- permit facts, ride great in the fac- beside a operator conflict in the licensed provide was to parties tual situation. are sub- maintain supervi- such sion and agreement as to what occurred assistance necessary stantial when over unlicensed particular day. And I think on this don’t as will make for the operation safe any that there is over the fact conflict motor vehicle. Such operated by construction being that this this vehicle our statute imposes defendant left surface of road who ac- undertakes to company and went limits of the outside the holder of a permit learner’s for the purpose dropped water down into the below. of the latter’s learning about be, however, It will make and handling of motor vehicles, as fully as if determination that vehicle was the statute itself spelled had it out, solely duty within supervise the control of this defend- the operation of ant at it left highway, the time that vehicle at all times and to render mean- ** * ingful and that the that its reason for assistance required when safety leaving highway unexplained.” extent taking physical control thereof when neces- The court further instruct did not sary. jury as to when it referred what meant highway leaving be- reason for In Tatum, Smith 97 S.E. Va. unexplained; did it nor instruct 2d 820 (1957), Supreme Ap Court of apply that it could the rule of res peals of Virginia, case, in a similar said: loquitur only had considered the after it ipsa loquitur] “The doctrine [of plaintiff’s participation the occurrence inapplicable because the defendant here her of contribu- exonerated de- did not have exclusive control. The conduct, tory especially in the negligent be- present cedent was automobile imposed statutory discharge duties of her required cause the the defendant statute by 29 M.R.S.A. § to have a licensed driver on the front ordinary This is the case of the obviously seat with her. This duty passenger at no time is guest he give directions op- physical to take control of the bound required.” exercise control if the occasion His duties at eration of the vehicle. [Emphasis supplied.] operator against warning consist in most duty recognize Virginia absence We do apparent danger. In the court’s vehicle, pronouncement inapplicability to exercise control over *10 412 ipsa loquitur management
the doctrine of res to the facts it exclusive control or call required case of that not for the ulti- an Although control not absolute one. mate decision therein as that ordinarily court further the doctrine will not apply that applied equally probable stated "if the doctrine it it is negligence would that the carry plaintiff’s not the proving that caused burden of the accident was that of some- gross negligence.” so, plaintiff Even the other than the court’s the judicial persons treatment need not applied of the rule exclude all other as who might simple possibly cases where negligence responsible been have is involved the approval. negligence, meets with Jay, our defendant’s as in &J. supra, appears Inc. prob- be the more plain- opinion puts upon majority the explanation. able See, Zentz Coca Cola v. prove that duty the the defendant tiff Bottling Fresno, Co. of 39 247 Cal.2d “exclusive control” as an of had element (1952). P.2d 344 Dahl, Krohmer 145 v. doctrine; yet the res seems it Mont. 402 (1965). P.2d 979 require- to indicate an abandonment of that Co., Drayage simply required Hamm ment for rule that Parlow Dan In page injury-causing instrumentality at (Mo.1965) to be “un- 391 S.W.2d as management der the stated the de- on control” of the rule exclusive preference proffered Is the for fendant. follows: simple management and control device con- the ‘exclusive "In this connection at the time of express accident an over- essential spoken of as an which is trol’ ruling principle of our decision recent does ipsa doctrine of the res element Jay, in & Perry Inc. E. Metal Iron & J. connotation the same have Co., Inc., Me. 210 A.2d which bears of control element carries the imprimatur fresh Court of this relationship. essen- master-servant concerning the “exclusive test? control” requirement meaning of this tial afford Inc., must Jay, supra, ‘the evidence In & we have indicated is that J. that concluding a rational basis
limitations
of
“exclu-
“such
probably
qualification
of
accident
sive control”
cause
test.
responsible
be
would
properly
that the defendant
jury
rule
stated
be “that
it.”
with
connected
negligence
negligence
others
could have excluded
possibility
does
mean
That
defendant
from
cause of
than
elimi-
altogether
be
must
Jay,
other causes
accident.”
agree,
We
as stated in &J.
nated,
their likelihood
Inc.,
but
plaintiff
must eliminate
“[t]he
greater probability
be so reduced that
possibility
on
negligence
Harper and
door.’
at defendant’s
injured
plain-
lies
[including
party
others
19.7,
Torts,
p. 1086.”
Sec.
by preponderance
than the
defendant
tiff]
James
case
of the evidence.”
If
the instant
plain-
injured
Thus, a
on which
stool
trial
court had
instructed
temporary
may
have been
tiff sat
prerequisite
applica-
that effect as a
tempo-
ipsa loquitur,
there
rule of res
yet
itself
thereof,
rary occupancy
the stool
have
no error and
ver-
would
been
thereby
base mechanism was not
its
dict could stand.
control of
the exclusive
withdrawn from
responsi-
The use of the “exclusive
control”
hotel which had the
defendant
“management
merely to
proper
and control”
bility
test is
for the
as a
instrumental-
stool
whether, un-
determining
ity
aid the courts in
thereon.
sitting
normal
“True,
general
ipsa loquitur,
der the
it is
rule of res
broken
lag bolt would not have
probable
injury was
chair,
more
than not that the
one had
if no
touched
but since
negligence:
the result of the defendant’s
the evidence excluded the
requirement
control,
responsible cause,
But
fairly
whether we
said
District,
Third
(D.C.
was an
94 A.L.R.2d
there
inference
*11
1963).
part
bolt
of the defendants when the
plaintiff attempted
broke as
to rise from
jury in
instant
The instructions to the
the
Hotel,
the
191
Gow
stool.”
Multnomah
v.
permitted
by
plaintiff on
recovery
the
case
45,
552,
224
(1950).
Or.
P.2d
“Where creates doubt applica- existence of the conditions contributory The issues of negligence and ipsa loquitur, tion of res one the decision is assumption of risk jury. were for the jury, fact be made Floyd, stated, law judge.” trial Houser For reasons we would sustain Cal.App.2d Cal.Rptr. 96, appeal.