*1 COMPANY, METALS REYNOLDS Appellant,
v. YTURBIDE, Appellee.
Paula COMPANY, METALS
REYNOLDS Appellant, v. MARTIN, Appellee.
Verla COMPANY, METALS
REYNOLDS Appellant, Appellee. MARTIN, 14990-14992.
Nos. Appeals Court States
United Ninth Circuit. 5, 1958.
June
Certiorari Denied Oct.
See
King, Miller, Anderson, Nash & Yerke, Jr., Frederic A. sen, N. Carl Clifford Portland, Jr., Tillinghast, David R. Or., McConnell, Joseph B. H. Gustav Richmond, Margraf, Lennon, W. Tobin Va., appellant. for George Mead, Irving Rand, W. Port- land, Or., Martin, appellees Martin, Verla and Paula Martin. Buchanan, Seamans, Smith, Frank L. Ingersoll, Eckert, Rodewald & Pitts Pa., burgh, Johnson, Gordon R. W. Koskinen, Oakland, Cal., Marrin, Thelen, Bridges, Francisco, Cal., Johnson & San Spielman, Torrance, Cal., E. J. E. Mc R. Cormick, York, Y., New Mc- N. Turner Baine, Pillsbury, Sutro, Madison & San Francisco, Cal., Rothe, Edward W. Ved Chicago, der, Price, Kammholz, Kaufman & l., amici curiae. Il STEPHENS, EN BANC. — Before Judge, HEALY, POPE, Chief LEM MON, CHAMBERS, BARNES and HAMLEY, Judges. Circuit POPE, Judge. Circuit July, 1946, Reynolds Metals Com- pany, corporation, acquired a Delaware through lease, an aluminum be- longing to the Government and loca- Oregon. Troutdale, It commenced ted at potline operation pro- first for the its September duction aluminum year. operation chem- they complain, containing of which caused ical escaping from defendant’s the fluorides cells reduction collected plant; (2), reduced “pots” the so-called *3 electroly any negligence, other evidence of or process of separated the or through duty, part defend- breach on the of the the passage of sis or current up ant. temperatures process, cell. developed. As the F. were 1775° question of With to the were cells compounds which the escaping fluo causation: —whether the fluoride charged, (cryolite sodium injuries, plaintiffs’ did rides cause fact fluoride) fluoride aluminum calcium and —the evidence was sufficient warrant large of fluorine percentages contain jury’s escaping the conclusion ranging percent, a consider 50 around injuries. fluorides were the cause of the material portion of fluoride able stipu disputed, It was fact it and process reached volatilized lated, quantities that “fluorides atmosphere. forms, escape, potlines and when the plan Shortly operation of after plant operating, of said from de were appel December, began, and plant.” pre-trial stipula fendant’s The Martin, appeals, Paul these lees in three tion, stating specific after fluoride daughter, Martin, wife, and his Verla escape combinations which did in the Yturbide), (now Mrs. Martin Paula gases, liquids solids, form of and and near or ranch farm their cattle moved to air-borne, which became recited that a mile a mile to located about Troutdale “portions thereof various have settled at plant, from the aluminum and one-half upon times the lands” of the Martins. November, they until there resided and A horticulturist from the of which these The out law suits College, years 1948, State upon grew claims that appeals were based samples plants and 1950 made test during on residence grown plots vicinity selected they poisoned fluorides were the farm property, purpose Martin for the originated appellant’s plant which determining the fluorine content of such farm the air and were borne plants. plots Some the test used were fluoride efflu breathed where property as as close and highly and toxic also to be ents claimed 1.1 miles from the aluminum Oth- garden vegetables growing in their ate ers located in the same from the direction absorbing the same also had been which plant away. plants were farther Those toxic elements.2 plots tested on nearest the aluminum plant showed substantial fluo- principal presented amounts of here The plants rine plots content. The adduced at the is whether the evidence tested on away below, (the plant which were farther three cases tried from the trial together evidence) subtantially decreasing upon showed and the same fluorine content, indicating permit go thus relatively was sufficient speaking appellant Upon the nearer jury. aluminum greater contended, (1) concentration gases, particulates, fumes and proof (i. to demonstrate e. fine sufficient solids). making plaintiffs, damage test, In plants such hydrogen fluoride, prevail- form in sili- the defendant and carried took 1. It ing tetrafluoride, upon over, settling sodium aluminum winds cone cryolite. upon, fluoride, fluoride, plaintiff lands re- gas present, fluorine, which im- sided and such were inhaled mediately ingested by plaintiff, with other elements poi- combines and said compounds. effluent compounds plain- make sonous fluoride rendered permanently ill and tiff caused Pre-Trial Orders: “Plain- 2. From undergo and to poisonous to suffer serious fluoride contends tiff personal injury.” emanating permanent from the throughout half readily com- first fluorine 1948-1949 absorbed gladioli appellant pounds after which time the such as buckwheat testing. began new control installation of were used so as to facilitate system efficient which was much more did not indicate The results therefore arresting escape fall-out. quantities fluorine which vegetables garden likely found in be showing to where these There is gar- grew their those the Martins large finally quantities set- effluents plot domestic use. den for their experiments above mentioned tled. general greater portion an absence there was would indicate that the just quantities fluo- plant, as to what settled on those areas nearest the *4 fumes, gases, contained in rides these Martin farm. and those areas included the degree particulates, passed the Martin and over That did have some the effluents by them or land or were inhaled of by proof or harmful effect indicated toxic was garden vegetables gested eaten from cattle that was, however, proof damage place them. There fluorosis. from shewed the Generally One respect fluorides were toxic. it does with to cattle appear without chemists who challenge stated testified controverted been hy- hydrofluoride damage acid or that cattle from an aluminum drogen fluoride, fairly from plant phenomenon.3 the effluents one of is a common plant, “quite and was toxic” from Of course it does not follow against chemistry warned “the books on inhaling damage proof mere to cattle of some Appellant it.” concedes place plaintiffs’ phys the Martin that the poisonous in exces- such fluorides “are injuries ical excessive were due to amounts.” sive amounts of fluorides from the large very quantities That get grass Cattle food their whole from fumes, gases, leave particulates, did ingest large quantities. A human air, plant and into were diffused relatively propor diet contains small unquestioned. Appellant's ex- own was vegetables. purpose tion of For equipment disclose that with the hibits assume that the evidence escape was used to control the which place that cattle on the Martin showed gases during Mar- that the injury health from fluorides has farm, hundreds of tins lived on significance here other than to show escaped pounds effluents year 1947, of these each place reach Martin fluorides did day. amount Thus quantity quan in some and that day escaping per alone from of fluorine may tity ingestion plants of affected averaged pounds. Com- possibly cause illness in a mammal.4 years escaped parable in the amounts Privy examining Medical During medicine of Council witnesses 3. produced Council, frequent ref- Research made counsel for publica- in foot- No. 22 referred to memorandum Government erence to British 3, supra, “Q. as follows: note testified Mem- Research entitled “Medical tion Why, Doctor, cattle and animals are both Fluorosis 22 on Industrial No. orandum humans, men, affected well as and Ani- to Man of Hazards and State factory? an A. William, from aluminum effluents This Scotland.” mal near Ft. study fluorides —fluorine reports of fluorosis Because of a the result deadly poisonous sheep mammalian affecting tis- alumi- are near an cattle just sues, reports respect factory. man as much is mammal It with num sheep.” vicinity grazing a cow cattle to such osteodystrophia, factory dental le- assigned Error account sions, of osteomalacia cases and “some damage to cat- of evidence admission intoxication”; also severe fluorine due Since, indicated, evi- as here tle. milk in af- and loss of of condition loss only significance, had a limited dence animals. fected its admission was er- cannot be said purpose physician Hunter, ror. It was admissible British Donald Dr. here stated. in industrial research a director mony contrary, testimony significant adduced but the evidence bit of A behalf, glass principally from Martin home adduced on their was expert hydro- British by acid, probably medical referred to etched became 3, supra, Capps, efflu- footnote one of the Dr. which was fluoric acid Chicago specialist plant. One of on diseases of the from the ents liver, substantial, view, witnesses, doctor expert British and in our fully worthy Capps had prior experience sim- of credit. Dr. had some who glass etching near indus- consulted in Novem- Martins located ilar ber, 1951; Hunter, abroad, Dr. ex- plants testified that the British trial pert, shortly glass he examined the be- window testimony Martins from the Martin during trial; fore the time of the re- shown he also laboratory quantities fluo- viewed other tests indication of excessive atmosphere. Capps made with to them Dr. ride contamination physicians ex- other who Although are Martins the cases of the only amined them. Their’s was not the pro- unique unable support medical adduced literature or from medical duce either Martins, of the claims but it *5 expert histories of witnesses probably complete. quali- the most Their they namely, persons were, situated as testify only adequate fications to was not simply working in but experience subject but their with the plant, living who outside and near the upon they which testified was outstand- developed symptoms theirs similar to ing.5 purposes For the of this consequence of emanations of the fall-out say it is sufficient to the evidence (see plant, from an footnote clearly accepting warranted the they produce infra) 5a nevertheless testimony and conclusions of these testimony which did substantial medical point is doctors. Hence there physical their disabilities and connect undertaking detail their at escaping injuries the fluorides with length.6 also Of course there testi- pains by Royal aggravated lifting by Hunter, were a Col- and Dr. Fellow types lege Physicians, a various of exertions. director of Tlie third de- group symptoms partment had to industrial with the for research of medi- do lungs. respiratory tract, Council, Research He devel- cine the Medical oped dry cough public undertaking Privy a and Coun- shortness of a breath give particularly developed frequency And, finally exertion. he He had been called cil. particu- field, in this at medical schools urination lectures throughout larly night, groups at to such an before extent that'— medical eight night, testifying times he seven at and he was the world. Before amined ex- reports sleep. were, brief, Those unable to the reviewed symptoms comjdamed particularly which he tests made efficiency of. liver hospital damage our observations in tests to And determine trying were directed towards deter- the cells livers of the Martins to made by groups Capps four whom Dr. Hunter mine what those were due Dr. “probably referred to world’s to.” subject.” length expert detailing process greatest After on this diagnosis arrived at a he Capps 6. Dr. described Martin’s symptoms what caused which in- place, symptoms as “In first follows: diagnosis fluorosis, (a poison- a cluded developed diarrhea, indigestion, he ing fluorine), hepatitis, toxic heartburn, bloating, particularly aft- (toxic liver), involvement he symptoms Those all er meals. were re- conclusion as stated his follows: “In And, to the intestinal tract. ferable sec- potential view, then, history of this developed ondly, symptoms which exposure he we view of the fact symptoms: might refer to as skeletal were advised—that we were back, particularly pain, group occasional- in his a rather faced with bizarre leg ly sufficiently symptoms severe so that is an down the involvement of a —here symptoms body over and tie his he was unable to bend number of the which was put shoes, example, definitely bizarre, unusual and for even ,as exactly on, corresponds a fact. shoes matter of These to the de- expressed way con- medical witnesses found the Martin place. fidence their conclusions because of substantially fact found On behalf of the defendant evidence individuals, symptoms in same the three very only was adduced to show that small concentration of lessening possibility thus could fluorides symptoms were to individual attributable have reached the Martin home. We idiosyncracies. able Neither one was think the in ac- warranted degree testify concentra- to tion, as to the cepting plaintiffs’ testimony, and the many parts per million —how therefrom, ferences excessive bring fluorides, required be —would them, amounts of fluorides reached injuries found, both at- about but they actually poisoning. suffered fluoride significance tached fact There was no house the window in the was etched particular per- as to what Capps, acid. think As stated Dr. “I centage or concentration of fluorides enough etch that if there fluorine to necessary produce such results. window, be able to etch should obliged Plaintiffs respect accept in that lung.” own ex- Dr. Hunter related his the concession de- made finding England family perience in fendant to the effect that such fluorides symptoms with the the Martins same “poisonous are amounts.” excessive who lived in house near an industrial only possible conclusion be- similarly plant7 whose windows were damage actually cause the caused etching etched and said ob- that the he fluorides, they managed to somehow glass served in taken from Mar- get there quantities. in excessive *6 home tin an indication excessive was of think accept permis- we must this as a quantities atmosphere. fluorine in the of finding jury. sible of the referred to He studies made in 1946 important question The is whether warning “against the industrial world proof any negligence was of or throwing atmosphere into an effluent duty other breach part of of the glass.” which would etch brought defendant which about in- juries proximate as its result. A further circumstance which the emphasized medical witnesses was that In our opinion, former in the of the case the Martins their abnormal case of Martin, (Reynolds Paula Metals symptoms were reduced lessened Company v. Yturbide, Paula Martin they away after had moved from the April 24, 1957, reported), this court vicinity plant. of the We are thus led to expressed the view that these the conclusion war- was were entitled to recover under the doc finding, they did, phys- ranted as Rylands, trine of Fletcher v. 3 H. & C. injuries Rylands (affirmed Fletcher, to the Martins were caused ical 330), the fluoride emanations from the 3 H.L. L-R. referred to certain scription published fluorosis; tissues;” they body of cases of that when enter furthermore, explana- enzymes body cells; there is no other attack the single compounds cannot tion. One make another fluorine fed animal ex- diagnosis produced periments degeneration that would cover all of these of the symptoms. kidney; symptoms could One make four or five liver but, course, diagnoses, always poisoning of is subacute fluorine of were those obviously very poor thing to do. This seen in which were the Martins. It was picture family of fluorosis. is There is a the Martin were history exposure. potential suffering of the from subacute fluorosis because any explanation symptoms to find are unable after were identical with those search, and a careful under those circum- cases of that character which he had justified, jus- only previously. is stances one and not seen you tified, but are forced to make the pro- was 7. This ironworks which poisoning diagnosis of with fluorine.” duced the same fluoride effluence. Hunter testified Dr. that “fluorine com- deadly poisons pounds are to mammalian
327 thought capture a more efficient effluents. were of the decisions designed liability, 1948, pilot plant recognize In strict was doctrine of purpose trying improved we said the liability of What out an without fault. system possible elimination, its a result that doctrine there about experiments plant, pilot As of the with application withdrawn. here is now arranged May, 1949, developed, it was about a discussion is hereafter change system. unnecessary a decision new over to a The problem Furthermore, completed stallation in No- of that was of this case. vember, system heard involved new not submitted to placing pot upon any theory.8 hoods over each the installation fans which sucked the argues Appellant a com- that there coming pots upward air forcing from the any plete want care absence through sprays and wash- operation alumi- its towers. im- result of use of this plant. contention num In this its system proved per- was to eliminate 90 opera- put is that before cent the fluoride equipped it facilities for tion it minimizing with escaped plant. While, air which from the effluents that the amount of previously average indicated, as we potroom escaped Each from the pounds escaping per day of fluorine dur- building equipped a ventilator ing 1947 and in the month building extending length of the the full March, 1950, they high ceiling. supplied Air at the roof yet beginning pounds, July, through at the doors to the room louvre began system used, when the new to be carrying the es- base caping gas, the heated air sharp there was a reduction so that in particulates fumes and moved December, 1950, November and after upward At the ven- to the ventilators. completion improved system, washing system was installed tilators a average daily escaping flow of fluorine sprays series of which consisted short, pounds. was reduced to 643 building length running full improved method, portion building left so that air that emanating fluorides which reached through sprays. pass After had to percent the air was 10 total as started, system spray baf- was first against percent sys- under the earlier *7 intercept and fles con- were inserted to tem. from the dense the moisture spray came air; escaping in into the other determining duty of words, take “mist” out of the air. imposed upon defendant, care the law system spray was The of this result it is to be borne in mind that or percent 60 it of the fluo- removed dinary care requires which the of law coming through the air rides from such a defendant is in measured only percent 40 of these roof so that com- knowledge potential defendant’s of actually escaped pounds from dangers. a Thus seller of fur coats who actually Defendant’s Vice-President knows that persons Assistant some few during especially susceptible poisoning by are testified that 1950, spray system particular dye of a fur precau 1946 to when the must take use, accordingly, greater the com- tions fluorides elimination was in precau carrying experiments pany required tions than would be was if he were making ignorant ways particular find better susceptibility. devise and of this Reynolds upon grounds Co., v. Metals affirmed 8. See D. other than those adopted F.Supp. judge, C., below, 379. The able trial in the court 135 we think it questionable expressing applicable doubt the doctrine that such rule is Rylands applied judgment upon would be where is based Fletcher jury acting kind, upon to a case of this verdict of a instruc- go comprehending grounds case should tions held that the new negligence. Although urged. issue judgment may appropriate cases a be in 328 Co., Mich. Gerkin v. Brown & Sehler view the whether in
45, 48, L.R.A.,N.S., knowledge N.W. company which the rea- was Torts, sonably required As stated in the Restatement of to have as a manufac- determining field, knowledge turer the standard § and the conduct, actually potential should reasonable recognize “the actor which it dangers did have of the escaping a involves that his conduct fluorides there causing risk of an another’s evidence of use reason- invasion of failure to *** interest, person, possessing protection able care if superior perception actor the situation such as the Martins. * * * has himself would infer On behalf of the was tes- it appreciable the causing chance act creates an tified that at all times defendant (n) such invasion.” Comment utilizing and had installed the latest “Superior under this section headed protecting and best known means of knowledge” “If actor has recites: against escape fluorides; knowledge, gained from wider whether company, studying continually the problem, otherwise, personal experience experimental pilot installed an propriety judgment risk of his as to process develop a new and then conduct is determined involved his changed improved process over to having what reasonable man feasibility soon as developed. as its knowledge regard probable.” urged On behalf of requirement propor This of conduct that the evidence conclusion warranted a knowledge superior tioned intelligence company did not exercise the developed actor is might care this direction which subject length in discussions on the done that it allowed the to be ed., pp. Torts, 132 to in Prosser on 2nd operated with the less elimina- efficient James, Harper & The Law system tion from 1946 1950 where- until that, only Torts, 16.5 28.4. Not §§ proper required care an earlier use duty position but it was the of one in the of the better devices. dangers of the defendant know of the only bit evidence which was proc incident to the reduction taken to sustain such a contention is point ess. As the authors last named found of Dr. Hunter 16.5, must “The manufacturer § out “Q. (By Mr. who testified as follows: dangers proc lurk learn of in his Mead): Doctor, you are familiar with products.” esses and system induced air of dust control or Naturally, A. I fume control? haven’t amply The record here demonstrates ventilating engineer. trained fully defendant was that the potential aware hy- I dangers But since first studied industrial escape fluo- giene in the Harvard School of Public *8 questioned is rides. It that numer- not Phillip Health with the Drinker famous injury ous the claims of to cattle from ventilating engineer is—he be- operation pre- plants of such had been —and work which cause of the I have to do and to this sented and other manufacturers. teach, medicine, is so which industrial The defendant’s senior chemist the at am, systems naturally, I of interested in laboratory Troutdale testified that he was chapters ventilation. in all of And familiar with literature description that book there is an exact qualities fluorides; toxic of these he that systems of used ventilation are quantities they toxic; in knew that parts of the world. And in in various of these were heavier than that air to all was well-known industrial- 1946 it being would reach the earth and after that world over exhaust ventila- ists air-borne; quantities that of them would effectively applied could be remove tion the direction land drift in effluents.” publications there were and that dangers beings Possibly ques- human can assume dealt that the relating system” an fluorides. “induced air tion
329 aggregating air, the fluorine contents system established sort of to the referred by told, pounds tests Testimony all that hundreds company in 1950. plant near the made various localities at in system known well such according thereof, every side failure permit an inference would sig- witnesses, produced no time defendant’s system at that better use that at is of fluorides negligence. nificant concentration it believe constituted Hence, the reaching tests made. ultimate time unnecessary our accepting court, proof, told such inference draw conclusion here to ordinary long that, course single “under answer from this events, unexpected persons it is we are of record for being vicinity plant of such a in the properly submitted trial court jury injured negligence fluorine harmed the would be emanating theory compounds therefrom.” correctly permitting the this was ruling effect so court ipsa application doctrine res determined that the accident loquitur. ordinarily does kind which occur not negligence. absence someone’s fol- The court instructed prime appli ais of That condition “Under law and the facts lows: ipsa cation of the rule of actions, so-called res sole was the these operator the defendant loquitur. F.Supp. (135 possession Said the court and in exclusive 381): page at “Here was instru- plant in- an direct control of the mentality namely, pos- during involved, that was the exclusive time volved 1946, 23, session and Something September control of the defendant. between on or about ordinarily Further, 30, we would not and November damage expect happen happen events, ordinary is course of under the unexpected being pure simple This persons resulted. is the it, injured ipsa vicinity plant test as the Court sees of res of such a would be loquitur.”9 using lan- court ema- or harmed fluorine guage nating similar therefrom, a mis- to that of Ritchie and that such Thomas, hap Or. 551: P.2d The statement would not occur.” negligence may “An inference only is arise sentences in the first two injury when unquestionable; caused sentence second strumentality theory conformity which is under con- with defendant’s management defendant, trol and much of the evidence adduced as, when the accident is the trial. The con- such instruction was ordinary hap- course of events sistent with the does not pen, equipped operated, management if those who ordinary use care.” cause fluorosis Such is the test who had generally approved employed such cases. itself. See Prosser, Torts, 201; Ed., p. Law of 2nd noted that there was evidence Harper James, Torts, The Law of amount fluo- or concentration of 19.6. § bring rides that would about fluorosis persons. the case dur- While Just what caused this not-or *9 ing percent the here 40 critical dinarily-to-be-expected scattering flu gases, got particulates fumes and amounts”, orides in “excessive specified. was not sprinkler system escaped they into That were so scattered inspection cited and relied Suko v. And, use the tank. Storage Co., stated, premises Northwestern &Ice Cold hereinabove 557, 209, 213, 366 Or. 113 P.2d where which the tank was located following language possession is “In used: exclusive under the di- ordinary course of matters mis- control of rect the defendant. There- hap fore, except ipsa would loquitur not have occurred ap- doctrine of res through construction, plies.” carelessness 330 finding. Here, asserts, adequate What it it made an was warranted judge explanation says: It the occurrence. concerns us here is that “Reynolds, shown, lan justified used the paraphrasing the as has been greatest 8): possible care, guage case, (supra, far re- note above that of the Suko quired by any human ordinary “In matters the reasonable risk course of injury.” except mishap occurred not have would ”* * * through Wheth carelessness. presents The Orr case sit- different faulty con er this was in want of care judge uation for found the who faulty struction, faulty inspection, or facts decided defendant. operation elimination of the fluorides present jury might accepted case the have required system, plaintiffs to were not proof explanation defendant’s but lay, show, for wherever the fault obliged obviously it did not. It necessarily the defendant which that of procedural problem to do so. The control. Of course exclusive this, faces as it such as defendant negligence to inference of referred developed cases, has is discussed merely Thomas, supra, Ritchie is v. length by Harper Prosser both permissible one, Hallack and Bedal v. 19.12): say, (§ & James. The latter Cir., Company, 226 Howard Lumber may ipsa “Defendant show a res case 526, 538, case to F.2d carries the but it happened, how evidence the accident jury. ordinarily but him this does not entitle Viewing plaintiffs’ most may to a directed verdict. The do, light, required favorable as we are reject still the evidence or find that Damage following: (1), have explanation preclude does the like- * * * position the Martins negligence. lihood of In most possible from “excessive amounts” of ipsa loquitur res eases cannot defendant fluorides; (2), poi- the Martins were definitely explain the accident. His usual soned and from this precau- defense consists fluorides; (3), permissible from constructing, tions he did take in main-
to infer
“excessive amounts” reached
taining,
operating
injuring
them,
excessive
there were such
strumentality.
great
—that
Once
while
in a
amounts;
(4),
emission
exces-
proof may conclusively
show that the
sive amounts from the
was circum-
happen,
accident did not in fact
or that
negligence.
ipsa
Res
stantial evidence of
it was not caused
But
defendant.
loquitur.
this is seldom the outcome. And where
not,
it is
defendant
is in this dilemma:
says
ipsa
Appellant
that the res
precautions
pre-
the less effective his
misapplied
quotes
here.
It
from
rule was
they
vent
apt
occurrence the more
court’s decision in Orr
v. Southern
appear negligent;
are to
841,
Cir.,
the more
Company,
effec-
F.2d
Pacific
precautions
loquitur
to,
tive the
ipsa
testified
843,
statement:
“Res
the less
likely
procedural
have
to evidence.
It
are to
[been]
rule as
taken in
hap-
since the
this case
facts which
accident
is never valid in
face
pen.”10
explain
adequately
occurrence.”
following
merely
quote the
from
ant
offers evidence of
authors
his
10. The
own
Co.,
precautions amounting
Providence Ice Cream
acts and
Minutilla
rea-
884,
care,
887,
144 A.
63 A.L.R.
sonable
it is seldom
50 R.I.
verdict
commonly
used
can be directed
his
“If
the care
favor. The infer-
334:
exercised,
pres-
had been
ence
the circumstances
remains in
glass
pieces of
cream
the case
contradict
of these
evidence.
If
ence
impos-
proper
he testifies
he used
care
sold
wires,
inspect
fact remains that
insulate
Yet the
his chande-
sible.
*10
”*
* *
6, p.
lier,
bus,
they
(Footnote
keep
or
to drive
were.
defunct
wandering
1106)
mice
insect
life out of
beverage,
(pp.
the same matter
his bottled
tricity escaped
the
discusses
fact
that
Prosser
elec-
wires,
216-217)
“But if
from
follows:
the def end-
the
as
that
the
length
any
de
other
no
jury
different situation than
instructed at
Here
were
the
ipsa
res
in a
plaintiffs’ claims
fendant who finds itself
to the effect
that
the
ap
not,
jury.
is
de-
a
upon
case and before
It
that
assertion
based
applica
negligence.
asserts,
pellant
the victim of
guilty of
fendant had been
negli-
liability.
rule
tion of a
of absolute
and the
The nature of their claim
gence
court
asserted was stated
Appellant
that
contends
substantially
lan-
the same
misapplied the
court misconstrued
pretrial
guage
in the
set forth
that
ipsa loquitur
failed
it
res
in that
doctrine
court
quoted
The
above.
statement
language
from
quoted above
to use the
of the
stated
contentions
the-
that
Ritchie
effect
v. Thomas
negligence;
claim
to this
negligence permissible un
inference of
negligence
that
forth
set
defined
it
may
acci
der
arise “when the
that
rule
prove
required
not
as,
ordinary course
is
dent
such
negligence
only negligence
such
but that
happen,
who
those
events does not
if
injury
proximate
of the
cause
was the
ordinary
management
care.”
have
use
damage.
here
contention
There
or
is
(Italics ours.)
adequately
that
these terms were not
in the instructions.11
defined
plain
noted above that
is
applied
particular
ipsa loquitur
that
had this
is
When res
requirement
mind
in
when it
stated
occurrence warrant
facts of the
negligence. They
its instruction
that “under
furnish sub
ference
ordinary
negligence where
course of events it
un-
stantial
evidence of
expected
being
lacking,
persons
may
in the
that
vicin-
the direct evidence of it
be
ity
injured
they
of such
or
decided
be
but
make a case to be
finding
jury.12
emanating
di
harmed
itself
fluorine
reported opin-
by Harper
therefrom.”
& James
court’s
lemma mentioned
ion, previously
dealing
language
above, appellant
cited,
quoted
inis
causing
negligence,
fell,
into
ble for
that
the bus went
actionable
an
chandelier
the ditch and the
alleged injury,
bug
bottle,
duty
in the
there must
be some
experi-
upon
background
party,
perform
with the
common
that
and failure to
hap-
usually
duty,
produces
things do not
such
ence that
concurs or
used, may
joins
proper
permit
producing,
proximate
pen if
care
cause
resulting injury complained
find
men to
that his witnesses
reasonable
of.”
precau-
believed,
proof
are not
“The burden of
in all
to be
cases rests
upon
party having
not sufficient
con-
tions described were
the affirmative
required
issue,
cases,
form to the
or were
of the
and in
standard
faithfully
out,
proving by
preponderance
carried
and that
burden of
not
neg-
all
whole truth has not been told.
It is of
evidence
case
impossible
prop-
part
ligence
course not
on the
of the defendant and
may
overwhelming
negligence,
any,
proxi-
be so
as to
such
if
er care
call for a directed
was verdict,
injuries complained
but
mate cause
ordinary
respective plain-
will
case it
not be sufficient to
each of the
three
destroy
ipsa
tiffs,
plaintiffs through-
inference from
rests
res
those
loquitur.”
out
trial.”
Sweeney
Erving,
233, 240,
in the
Included
instructions were the
12.
U.S.
following:
416, 418,
33 S.Ct.