Opinion
No. 33587
Decided April 7, 1954.
Negligence — Motor vehicle running off road — Accident unexplained — Occurrence raises permissible inference of negligence, when — Jury question presented — Res ipsa loquitur.
Where a motor vehicle and the operation thereof are exclusively within the control of the driver, and a paying passenger in such motor vehicle is injured when the vehicle runs off the road, and the accident is unexplained and is one which is not commonly incident to the operation of a motor vehicle, the occurrence itself raises a permissible inference of negligence on the part of the driver and presents a question for submission to the jury in an action against the driver based on such injury.
APPEAL from the Court of Appeals for Montgomery county.
On the morning of January 3, 1951, at about the hour of 6:30, it was dark and rainy. Defendant, Norris Shaffer, was driving his station wagon over a public highway which extends through parts of Greene and Montgomery counties and was transporting nine other men, including plaintiff, to a factory in the city of Dayton. Defendant was proceeding at a speed somewhere between 40 and 50 miles per hour when suddenly the car left the road and struck a tree. Plaintiff claims to have suffered personal injuries thereby and brought an action for damages against the defendant in the Court of Common Pleas of Montgomery County.
The petition charges defendant with negligence generally and alleges he did not have his car under proper management and control and was driving at a rate of speed higher than was reasonable under the existing circumstances. The answer denies negligence.
On the trial of the action, evidence was introduced tending to show that plaintiff paid the defendant at the rate of $1 per day for being transported to and from work in the station wagon.
Plaintiff called the defendant for cross-examination and the record discloses the following questions and answers:
"Q. I believe your counsel stated that you observed something whitish or a different color on the highway after the accident? A. No, I wouldn't say it was after the accident.
"Q. When did you observe anything unusual on the highway? A. Just as she went to slip, when I hit a bad place on the road.
"Q. Describe what you observed. A. Seemed to be a white spot in the road. I don't know how big. I would say two — two and one-half feet in diameter, and it sort of looked white like, and as I hit the broken spot in the road, the rear end slipped, and just as it did, it hit this white spot, and I slid into the ditch.
"Q. Did you ever of your own knowledge make any investigation as to what the white spot consisted of? A. Yes, I came back after I was out of the hospital, and could get around, and couldn't find anything there."
On plaintiff's direct examination, he testified as follows:
"Q. And, as you neared the Montgomery county line, what event, if any, took place? A. Well, as we was going down Indian Riffle road, there was a light drizzle of rain — damp-like drizzle of rain — it was kind of dark. Headlights on * * * and he swerved just a little bit right the other side of that gate — and, when he swerved, I said, `Keep her in the road, Shaffer,' but I got no answer, and just — hadn't hardly got it out of my mouth, he went right along the fence there, and then he hit the tree, and then, that's it."
At the close of plaintiff's case in chief, defendant moved for a directed verdict in his favor, which the court granted for the reason "that the evidence introduced by the plaintiff, including the cross-examination of the defendant, is insufficient as a matter of law to show any negligence on the defendant's part."
Judgment in defendant's favor followed, and plaintiff's motion for a new trial was overruled.
On an appeal on questions of law to the Court of Appeals, that court reversed the judgment below and remanded the cause for a new trial. The reviewing court was of the opinion that the trial court was wrong in directing a verdict and should have permitted the case to go to the jury under the rule of res ipsa loquitur.
The cause is now before this court because of the allowance of a motion to require the Court of Appeals to certify its record.
Mr. Herbert M. Eikenbary, for appellee.
Messrs. Matthews Altick, for appellant.
A majority of the court is of the opinion that the Court of Appeals properly invoked the rule of res ipsa loquitur in this case. To say the least, the evidence relating to the exact cause of the accident is indefinite and uncertain.
Whatever the attitude of this court may have previously been, ever since the decision in the case of Fink v. New York Central Rd. Co., 144 Ohio St. 1, 56 N.E.2d 456, the principle has been followed that the rule of res ipsa loquitur is applicable where (a) the instrumentality causing an injury was under the exclusive management and control of the defendant and (b) the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. See, also, Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St. 119, 73 N.E.2d 498 (first paragraph of the syllabus), and Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167 (first paragraph of the syllabus).
Specifically, where a motor vehicle and the operation thereof are exclusively within the control of the driver, and a paying passenger in such motor vehicle is injured when the vehicle runs off the road, and the accident is unexplained and is one which is not commonly incident to the operation of a motor vehicle, the occurrence itself raises a permissible inference of negligence on the part of the driver and presents a question for submission to the jury in an action against the driver based on such injury. See Weller, Exrx., v. Worstall, 129 Ohio St. 596, 196 N.E. 637. Compare Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E. 493.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, HART, STEWART and LAMNECK, JJ., concur.
MIDDLETON, J., dissents.