Opinion
Argued May 24, 1938 —
Decided August 6th, 1938.
1. Plaintiff went to defendant's beauty parlor, and while sitting in a booth during the course of treatment of her hair was struck by a chandelier which broke and fell from the ceiling where it had been suspended. Held, that the case was one to which the doctrine of res ipsa loquitur was applicable, and it was error for the trial judge to rule that it was not.
2. The doctrine of res ipsa loquitur arises where an accident happens, without explanation, justifying the inference of want of due care on the part of defendant; and while the defendant is always entitled to introduce testimony to negative that inference, yet it remains and should be considered by the trier of the facts together with the other testimony in determining the defendant's liability in the premises.
On appeal from the District Court of the Fourth Judicial District of Union county.
Before Justices TRENCHARD, PARKER and PERSKIE.
For the appellant, Winfield S. Angleman.
For the appellee, Joseph J. Mutnick.
This is a tort case. Plaintiff appeals from a judgment entered upon the judge's verdict of no cause for action.
Plaintiff entered defendant's beauty parlor for the purpose of obtaining a permanent wave. She was directed to a booth, and while sitting there during the course of the treatment, she was struck by a chandelier which was suspended from the ceiling, and which broke and fell upon her. Apart from a recital of the mere happening of the accident, there was some testimony for the plaintiff that the chandelier was defectively installed. The proof for defendant, on the other hand, was to the effect that the chandelier was inspected regularly and that reasonable care had been exercised.
The court below ruled that the doctrine of res ipsa loquitur was inapplicable, but denied defendant's motions for a nonsuit and for a directed verdict, and found, upon the proved facts, that there was no liability.
We think there was reversible error.
This is not the type of a case where all the facts and circumstances concerning the accident were disclosed by the proofs with nothing left to inference on the question of defendant's negligence. Were this such a case the doctrine of res ipsa loquitur would, of course, have no application. Hochreutener v. Pfenninger, 113 N.J.L. 317 ; 174 Atl. Rep. 513. On the contrary, the facts in the case at bar clearly invoke the doctrine. Feingold v. S.S. Kresge Co., 116 N.J.L. 146 , 147; 183 Atl. Rep. 170 (falling of a picture display rack upon a customer in the store); Gordon v. Weinreb, 13 N.J. Mis. R. 835; 181 Atl. Rep. 435 (falling of a box of soap upon a store customer). Cf. Cleary v. Camden, 118 N.J.L. 215 , especially cases collated at pages 219, 220; 192 Atl. Rep. 29; affirmed, 119 N.J.L. 387 ; 196 Atl. Rep. 455. That being so, the happening of the accident justified the inference of want of due care, of negligence.
True, defendant is always entitled to go forward, as she did in the case at bar, with explanatory testimony to negative the inference of negligence, but the inference remains nonetheless, and should be considered by the trier of the facts. Thus, under the circumstances here exhibited, it might well have been that, notwithstanding a consideration of the inference raised by the invocation of the doctrine of res ipsa loquitur, the trier of the facts might have concluded that defendant had exercised due care and thus incurred no liability. But the conceded failure to consider that inference, along with the other proved facts, was harmful and prejudicial error.
Accordingly the judgment is reversed; and a venire de novo awarded. Costs will abide the event.