Opinion
No. A-83510.
1948-01-20
HALL v. REDIFER.
Clayborne George and John G. Pegg, both of Cleveland (John G. Pegg, of Cleveland, of counsel), for plaintiff. McConnell, Blackmore, Cory & Burke, of Cleveland (Burns Weston, of Cleveland, of counsel), for defendant.
Action by Eula Hall against Charles J. Redifer, doing business as Redifer's Bus Company, for injuries.
Judgment for plaintiff.Clayborne George and John G. Pegg, both of Cleveland (John G. Pegg, of Cleveland, of counsel), for plaintiff. McConnell, Blackmore, Cory & Burke, of Cleveland (Burns Weston, of Cleveland, of counsel), for defendant.
LEWIS DRUCKER, Judge.
The petition alleged that the defendant is a common carrier of passengers and that on the 14th day of April, 1946, the plaintiff occupied one of the regular seats furnished and provided by the defendant for passengers in its bus which was being operated from the city of Cleveland, Ohio, to Lorain.
The petition alleged further that she looked at the seat, prior to her taking it and upon arriving at her destination in Lorain she found that her clothing was wet. An examination then showed that the seat had been wet and that it had been soaked with water or other liquids.
Plaintiff alleges that as a result of the wet condition of the seat she was made ill and suffered injuries and that these were caused solely and proximately by the carelessness and negligence of the defendant.
The defendant did not offer any testimony but after the plaintiff rested moved that the court direct a verdict in favor of the defendant. It had been admitted that the defendant Company owned and operated the bus and that it was in control of its agent.
It is logical to conclude that the control of the bus include supervision and control over the seats designated by the defendant as proper places of occupancy by the passengers. There was no evidence from which there could be any indication or inference of contributory negligence. The court found that the seat was in control of the defendant and that the injury as claimed could not have happened under ordinary circumstances if due care for the comfort and safety of the passengers had been exercised by the defendant.
The court found that the evidence adduced created an inference of negligence and that it became the obligation then of the defendant to offer some explanation as to the cause of the condition of the seat since the instrumentality which caused the accident was under the exclusive control of the defendant.
3 Cooley, Torts, sec. 480, p. 374, 4th Ed. (1932).
A. It is hardly accurate to say that the mere fact of an injury gives rise to the inference of res ipsa loquitur. That certainly would make everyone an insurer of his acts. It is however, the circumstances and facts which surround the accident, together with the fact that the injury occurred which raises the inference.
Kaples v. Orth, 1884, 61 Wis. 531, 21 N.W. 633.
B. When the inference arises under the circumstances the effect is merely to support the plaintiff's case as would the introduction of evidence of the defendant's negligence. To rebut this the defendant must introduce an explanation of the cause of the accident.
Loomis v. Toledo Rys. & Light Co., 1923, 107 Ohio St. 161, 140 N.E. 639. (Called res ipsa loquitur a presumption of negligence.)
C. However the weight given to the fact of the injury is within the domain of the jury, and they are not bound by the inference.
Fink v. New York Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456.
The court is of the opinion that there were sufficient elements in the testimony which warrant the application of the doctrine of res ipsa loquitur. It has never been denied that a common carrier owes to its passengers a high degree of care. Cooley: ‘In the case of a railway company as a carrier of passengers, the reasons which charge the company with presumptive negligence in the case of an injury seems to be still stronger (than injuries not by common carriers). * * * May not he, who has entrusted his person and life to the control of the company to be carried by them in vehicles of their selection and maintenance, rely upon the injury as entitling him to redress, and leave to the defendant the task of presenting exculpatory evidence.’
In the case of Fox v. Bronx Amusement Co., 9 Ohio App. 426, a woman was injured when the seat in a theatre on which she was sitting collapsed, and the court held the doctrine was applicable.
The doctrine of res ipsa loquitur being one of evidence does not require that there be an allegation by the plaintiff that the defendant had knowledge of the existence of the defect or that it has an opportunity to gain such knowledge. We believe that there is no necessity of establishing knowledge where the doctrine of res ipsa loquitur applies. It became the duty of the defendant to offer some explanation of how the accident occurred in order to negative the application of the doctrine.
In Cleveland Railway v. Sutherland, 115 Ohio St. 262, 152 N.E. 726, the court held that the doctrine of the res ipsa loquitur did not apply when there was direct evidence of the cause of the injury and where there might exist an inference that the injury was due to a cause other than the defendant's negligence.
It is clear to the court that the seating of passengers is an essential part of the operation of its obligation of the defendant as a carrier and that it is incumbent upon the carrier to furnish seats which have not been deluged by water or other liquids.
The defendant was under the necessity of offering some explanation or some evidence to indicate that the condition of the seat was due to some other cause than that of the negligence of the defendant.
The defendant refusing to plead further, the Court overrules the motion of the defendant to direct and finds for the plaintiff in the amount claimed as damages.