Munzert v. American Stores Co.

• Decision Date: 26 June 1963
• Docket Number: No. 257,257
• Citation: 232 Md. 97,192 A.2d 59
• Parties: Betty MUNZERT v. AMERICAN STORES COMPANY.
• Court: Maryland Court of Appeals

Page 97

232 Md. 97

192 A.2d 59

Betty MUNZERT v. AMERICAN STORES COMPANY.

No. 257.

Court of Appeals of Maryland.

June 26, 1963.

Joseph I. Pines and William O. Goldstein, Baltimore (Israelson & Pines, Baltimore, on the brief), for appellant.

David M. Buffington and Eugene A. Edgett, Jr., Baltimore, for appellee.

Argued March 8, 1963, before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY, and SYBERT, JJ.

Reargued June 3, 1963, before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

When the empty soft drink cases stacked on a hand truck or dolly in a food market fell and struck a customer on the side of her head and other parts of her body and injured her, this tort action was brought by Betty Munzert (plaintiff or appellant) against the American Stores Company (defendant or appellee) to recover damages for personal injuries allegedly received as a result of the accident.

The trial of the case before a jury resulted in a verdict for the defendant and the entry of a judgment for costs against the plaintiff. This appeal followed. On appeal, it is contended that the trial court erred (i) in refusing to direct a verdict for the plaintiff as to the negligence of the defendant and (ii) in refusing to instruct the jury as to the absence of negligence on the part of the plaintiff.

The dolly was used around the store to transport objects from one part of the premises to another. It was three and one-half feet long and was equipped with four trundle wheels but did not have brakes. The two wheels in front were fixed and the two in back were swivelled. A railing or handle was affixed to the base of the dolly above the rear wheels. The flat bottomed base was six inches from the floor and the handle was three feet high.

On a Saturday morning in January of 1959 a clerk in the employ of the defendant stacked empty wooden cases on the dolly inside the store to a height of five or six feet and pulled it, while walking backward with one hand resting on the cases to steady them, out of the store to the front sidewalk. He left the loaded dolly standing unchocked and unattended against the storeside of a lolly-column or pole supporting the canopy over the sidewalk while he returned to the store. According to the clerk, he had properly stacked the cases on the dolly. However, when he returned some five minutes later to unload the cases and to set them up to receive empty soft drink bottles returned by customers, he found eight or nine of the cases lying on the sidewalk along side of the plaintiff's automobile, which, according to the clerk, was parked with its right rear wheel adjacent to the dolly.

The plaintiff drove to the shopping center in which the store was located and left her automobile on the nearby parking strip and entered the store to do her marketing. After checking out she pushed the market cart she was using out of the store and left it temporarily on the sidewalk near the front door. As she came out of the door, she saw the clerk moving the dolly in front of the store but paid no particular attention to him. The plaintiff got into her automobile and drove it to the loading center and, according to her, she parked the vehicle with its right side against the curb 'about five feet' ahead of the dolly. After she had parked, she pushed the market cart up to the automobile so as to put the cart between herself and the dolly. As she stood facing the dolly and was about to transfer the contents of the cart to her automobile, the cases toppled toward her and struck her as they fell. She said that she had not struck the cases with her automobile as she came into the curb to park and, according to her testimony, she had not come into contact with the dolly or cases personally or with the cart as she was maneuvering into a position beside the automobile.

According to the plaintiff, no one other than herself and the clerk had been in the vicinity of the place where the case-loaded dolly was standing at the time of the accident.

At the close of the evidence, the trial court instructed the jury substantially as follows:

That there was no evidence to show how the accident happened.

That there was evidence that the clerk had brought the cases out of the store and had gone away and left the dolly standing against a pole and that while the customer was putting the groceries in the automobile the cases fell and struck her; that the jury could believe or disbelieve that the customer had not struck the cases with her automobile or the market cart or it could believe or disbelieve that the clerk had stacked the cases properly; that if the jury found that the customer had not struck the cases, then it could infer that the cases had not been put on the dolly as they should have been; and

That the plaintiff had the burden of showing that the cases had been negligently stacked and that she had not knocked them over; and that if and when this was shown, then it was the duty of the defendant to go forward with the evidence and explain how the cases were knocked over or why they fell down or otherwise show that the defendant was not liable.

The court then told the jury that if the defendant ran her automobile into the cases, or if, while getting out of the automobile she did not look, or saw that they were there and ran into them herself, then she would be guilty of contributory negligence, but added that there was no testimony to that effect. After it had instructed the jury as to the measure of damages and that it had a duty to distinguish between the damages that had been caused by a previous automobile accident and the damages that had been caused by the store accident, the court reiterated that the basic problem was whether the store accident had been caused by negligence 'in piling the boxes' or by 'something else.'

(i)

The trial court did not err when it refused to direct a verdict for the plaintiff as to the negligence of the defendant.

In a case such as this, where the evidence is such as to bring a case within the confines of that twilight zone in the law of evidence relating to the burden of proof and the sufficiency of the evidence commonly known as res ipsa loquitur, a permissible inference arises that the defendant was negligent. However, the burden of proof is not thereby shifted from the plaintiff to the defendant. In such circumstances, the defendant has the duty of going forward with the evidence to explain or rebut, if he can, the inference that he failed to use due care, but he does not have the burden of satisfactorily accounting for the accident and of showing the actual cause of the injury in order to preclude the granting of an instructed verdict against him. Brehm v. Lorenz, 206 Md. 500, 112 A.2d 475 (1955); Baltimore American Underwriters v. Beckley, 173 Md. 202, 195 A. 550 (1937). See also Farinholt, Res Ipsa Loquitur, 10 Md.L.Rev. 337; Thomsen, Res Ipsa Loquitur, 3 Md.L.Rev. 285.

Since the doctrine of res ipsa loquitur means that the facts of the case warrant, but do not compel, an inference of negligence; that the facts furnish circumstantial evidence of negligence (where direct evidence of it is lacking) which is to be weighed, but is not necessarily to be accepted as sufficient; and that the facts call for explanation or rebuttal, but do not necessarily require either, the question of negligence is usually one of fact for the jury to decide not not one of law. See Proctor Electric Co. v. Zink, 217 Md. 22, 141 A.2d 721 (1958); Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552 (1944). See also Shirks Motor Express v. Oxenham, 204 Md. 626, 106 A.2d 46 (1954), where it was said that if the trial court finds that conflicting inferences may be drawn, the choice of inference must be made by the jury.

In the case at bar, it seems clear that the plaintiff was not entitled to a directed verdict as to the primary negligence of the defendant even though no explanatory or rebuttal evidence (other than that of the clerk to the effect that he had stacked the cases properly) was produced by the defendant. On the other hand, it is apparent that the defendant, having failed to fully explain or rebut the permissible inference that it was negligent, was not entitled to a directed verdict in its favor. Cf. Lee v. Housing Authority of Baltimore, 203 Md. 453, 101 A.2d 832 (1954).

The general rule is that a presumption of negligence on the part of the owner or lessee does not arise merely by showing that an injury has been sustained by a person rightfully on the premises. Bohlen v. Glenn L. Martin Co., 193 Md. 454, 67 A.2d 251 (1949). But the rule has a limitation or qualification for in 'lieu of direct proof of negligence [a plaintiff] may rely on the inference of negligence to be deduced from all the circumstances.' Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262, 96 A.2d 241, 245 (1953). This is, of course, the doctrine of res ipsa loquitur and its application is limited to those negligence cases in which the plaintiff proves that he has been injured '(a) by a casualty of a sort which usually does not occur in the absence of negligence, (b) by an instrumentality within the defendant's exclusive control, (c) under circumstances indicating that it was not caused by any involuntary act or neglect of the plaintiff.' Proctor Electric Co. v. Zink, supra, 217 Md. at p. 29, 141 A.2d at p. 724. See also Williams v. McCrory Stores Corp., 203 Md. 598, 601, 102 A.2d 253 (1954).

When these tests are applied in the instant case, it seems clear that the appellant brought herself within the requirements of the doctrine of res ipsa loquitur. There was sufficient evidence to permit an inference that the cases had been carelessly stacked on the dolly by the defendant. There was further evidence that the initial exclusive control of the dolly had not been interrupted. And there was the testimony of the plaintiff that she had not caused the cases to topple over on her. On the...