58 S.W.2d 234 | Ky. Ct. App. | 1933
Reversing.
This is the third appeal of this case. The opinions on the two former appeals may be found in
It will be noted that the only difference between the evidence for the Partin estate on this last trial and that of the estate on the trial from which the second appeal resulted was the evidence as to the condition of the coupling link immediately after the accident. But for this additional evidence, it is plain, that under the law of the case as laid down in the opinion on the second appeal, the Partin estate would at least, in the absence of the evidence of the appellee, have been entitled to go to the jury. So the question we have for determination is whether or not the additional evidence as to the condition of the coupling link immediately after the accident justified the trial court in peremptorily instructing the jury to find for the appellee. The latter insists that the trial court was so justified because of the rule that the principle of res ipsa loquitur does not apply or at least the presumption raised by its application is overcome, where the plaintiff has full knowledge and testifies as to the specific act of negligence, which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant upon the occurrence clearly appear. See 45 C. J. 1206. Although this is the rule, yet it is also the rule that a plaintiff is not deprived of the benefit of the doctrine from mere introduction of evidence which does not clearly establish *35 the facts or leaves the matter doubtful. As stated in 45 C. J. 1207:
"If the case is a proper one for the application of the doctrine (res ipsa loquitur) and the pleading is such that it may be invoked, an unsuccessful attempt on the part of the plaintiff to show the specific negligent act which caused his injury does not weaken or displace the presumption of negligence on the part of defendant arising from the facts of the case by virtue of the rule of res ipsa loquitur."
Thus in the case of Dearden v. San Pedro, etc., R. Co.,
"The defendant also contends that, even if originally the doctrine [res ipsa loquitur] would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, * * * there is, of course no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not *36 estop the plaintiff from relying upon the presumptions applicable to it."
To the same effect is the case of Kleinman v. Banner Laundry Co.,
The judgment is reversed, with instructions to grant the appellant, a new trial in conformity with this opinion. *37