Summary
applying res ipsa where a wet sponge fell and struck plaintiff, who looked up to see defendant window washer with his bucket overturned
Summary of this case from Ross v. Am. Red CrossOpinion
Nos. 29347 and 29348
Decided May 26, 1943.
Negligence — Res ipsa loquitur applicable — Window cleaner dropped wet sponge and spilled water on pedestrian — Question for jury — Injury attributable to one or both causes — Negligent drenching and subsequent exposure to elements.
1. The doctrine of res ipsa loquitur is applicable in an action to recover damages for personal injuries alleged to have been suffered by reason of the negligence of a window cleaner in dropping a wet sponge and spilling water on the plaintiff, in which action the defendant admits cleaning windows at the time and place alleged by the plaintiff and the plaintiff testifies that after the drenching she looked up and saw a man by the windows, with a bucket tipped.
2. When it may be determined from the evidence that two causes, namely, a negligent drenching and a subsequent exposure to the elements, have united and produced an injury, and both causes, or either of them, may be found to be proximate, such injury may be attributed to one or both causes, and a jury question is presented.
APPEALS from the Court of Appeals of Cuyahoga county.
Fostie Worland and her, husband, Edward Worland, filed separate actions in the Court of Common Pleas of Cuyahoga county against Isadore Rothstein and Charles Ginsberg, a partnership, doing business as Aetna Window Cleaning Company.
Mrs. Worland sought damages for personal injuries alleged to have been caused by the negligence of the defendants, while Mr. Worland's action was predicated upon a claim of the loss of services and consortium of his wife, growing out of the same incident.
The cases were tried together. According to the Worland's side of the controversy, supported by testimony, Mrs. Worland was about to enter the store of the F. W. Woolworth Company, at the corner of Euclid avenue and East 4th street in the city of Cleveland, on the early afternoon of February 16, 1940, when an employee of the defendants, who was cleaning windows on an upper floor of the building, dropped a sponge and some water which struck her on the left side of the head and on the left shoulder, thoroughly drenching her. She went into the store and reported the happening, then walked to the public square and was required to wait fifteen or twenty minutes for a street car to take her home. The temperature was below freezing and it was windy.
Mrs. Worland testified that as a result of this experience she developed chills, a sore throat, fever and an earache. She took to her bed and later her husband called the family physician, Dr. Richard Laube.
Testimony was offered that the ear condition grew progressively worse, causing pain, partial deafness and requiring constant medical attention. Dr. Laube testified that the wetting and exposure could have caused the catarrhal infection of the left ear which he found, and that he believed it did. He then proceeded to describe how the drenching and exposure would bring about such infection.
Upon motion, at the close of plaintiffs' cases in chief, the court arrested the testimony from the jury and found for the defendants, giving as the reason that no causal connection between the defendants' negligence and the injuries claimed had been shown. Whereupon, judgments for the defendants were entered.
Appeals on questions of law to the Court of Appeals resulted in an affirmance of the judgments below, one judge dissenting.
Allowance of the motions for certification brings the cases here for review.
Mr. Frank Leonetti, for appellants.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. Sheldon S. Reynolds and Mr. Arthur E. Griffith, for appellees.
In their answers, the defendants admitted that on February 16, 1940, they were engaged in cleaning the windows of the premises occupied by the F. W. Woolworth Company at Euclid avenue and East 4th street in the city of Cleveland. This was followed by a general denial of all other averments in the petition.
Mrs. Worland testified that after the sponge struck her and the water spilled on her she looked up and "saw this fellow up there standing by the windows and the bucket had tipped — the bucket was tipped at the time I looked up."
As we view it, this was sufficient to warrant a jury in inferring that one of the defendants, or one of their employees in the course of his employment, negligently dropped the sponge and spilled the water, thus invoking the doctrine of res ipsa loquitur. Glowacki v. North Western Ohio Ry. Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A. L. R., 1486.
The next and more important question is whether, assuming negligence on the part of the defendants, such negligence could be said to have been a legal cause of the physical impairment asserted by the plaintiffs.
Defendants argue that the injuries alleged were not brought about by the dropping of the sponge and the spilling of the water, but were due entirely to Mrs. Worland's voluntarily, unnecessarily and imprudently exposing herself to the inclement weather after any negligence of theirs had ended.
While it is true that the chain of causation between a defendant's negligence and a plaintiff's injury is broken when an independent act of the plaintiff, not within the reasonable contemplation of the defendant, intervenes to bring about the injury, it is likewise true that such intervening cause breaks the chain of causation between a negligent act and an injury only when it is adequate to create the injury.
Defendants cite several cases in which a railroad company negligently but safely discharged a passenger from one of its trains at the wrong station, and the passenger then unnecessarily and imprudently exposed himself to the elements and became ill. These cases hold there can be no recovery against the railroad, because the injury itself was due wholly and unquestionably to the passenger's own foolish conduct.
However, in the present case it could fairly be found that the wetting combined with the exposure brought about Mrs. Worland's trouble. In other words, that the wetting was a real and important factor contributing to the harm and without which it would not have occurred.
The law is well settled that when two causes unite to produce injury, both of which may be called proximate and each of which is an essential cause, without the operation of which the injury would not have occurred, it may be attributed to one or both causes. Hence, if it should be determined by a jury that any physical impairment sustained by Mrs. Worland would not have come about but for the wetting she received, and that her own behavior was not such as to preclude her, an allowance of damages would be supportable. In the event of an award of damages, the wrong of the defendants would be found to have been a cardinal element in the result.
Under the evidence in this case, we are of the opinion that a jury question was presented. The judgment of the Court of Appeals is therefore reversed and the cause remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., MATTHIAS, HART, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.