Welch v. Rollman & Sons Co.

• Citation: 70 Ohio App. 515,44 N.E.2d 726
• Court: United States Court of Appeals (Ohio)
• Decision Date: 15 June 1942
• Parties: WELCH v. ROLLMAN & SONS CO.

44 N.E.2d 726

70 Ohio App. 515

WELCH v. ROLLMAN & SONS CO.

Court of Appeals of Ohio, First District, Hamilton.

June 15, 1942

Robert A. Black, of Cincinnati, for appellant.

Kunkel & Kunkel, of Cincinnati, for appellee.

ROSS Judge.

This is an appeal on questions of law from a judgment of the court of common pleas of Hamilton county. The plaintiff was awarded $6,000 by a jury. The action was predicated upon injuries received by the plaintiff while a passenger upon an escalator, under the sole control of the defendant, which, it was alleged, suddenly jerked causing her to lose her balance and fall. It is further alleged that the defendant was negligent in not causing such escalator to stop after the plaintiff had fallen.

From the evidence, it appears that the plaintiff was a passenger upon an escalator in the department store of the defendant and was being carried from on floor down to a lower floor; that the escalator suddenly jerked, causing plaintiff to lose her balance and fall, being carried to the foot of the escalator before the same was caused to stop by the turning off of the electric power operating same.

The defense amounted to a claim that the escalator did not jerk and that the apparatus was so constructed that it was impossible for it to jerk as claimed, that once stopped it could not start again.

There was substantial evidence introduced, however, that the apparatus was under the sole control of the defendant, that it did suddenly jerk, that the plaintiff lost her balance and fell by reason of such sudden jerk, and that she was injured and that such injuries were due solely to and proximately caused by such jerk and fall. The plaintiff was unable to explain, and made no effort to explain, what caused the apparatus to jerk. The defendant did not attempt to explain the cause of the jerk, for two reasons: First, it denied that such jerk took place, and introduced evidence to that effect. Second, it introduced evidence to prove that it was impossible for such an occurrence to have happened, by reason of the character of the mechanism employed. In the briefs of counsel for defendant, the rule laid down in Black v. City of Berea, 137 Ohio St. 611, at page 627, 32 N.E.2d 1, at page 9, 132 A.L.R. 1391, is relied upon as sustaining such defense: 'As stated by Blashfield in his Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 10, § 6554, page 146: 'Where facts testified to are opposed to all natural laws and common experience, so that it is inconceivable that any such thing could have occurred, courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility.''

The complicated mechanism employed in the operation of an escalator certainly does not present to either court or jury such a manifestation of either 'natural laws' or 'common experience' as would justify either court or jury coming to a conclusion that the substantial evidence of the plaintiff that t jerk occurred was unworthy of belief and that 'it is inconceivable that any such thing could have occurred.'

The effect of the contention of the defendant is to all intents and purposes a claim that the plaintiff introduced no evidence to sustain her cause of action and that, therefore, that the defendant should have had judgment either because of predominating evidence of the defendant or that there was no evidence to sustain the plaintiff.

Certainly, it cannot be maintained that the plaintiff had no substantial evidence to sustain her case, or that reasonable minds could reach but one conclusion, and that adverse to the plaintiff.

Such being the case, the facts proved presented an issue of fact for the jury. In Hamden Lodge, etc., v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246, the 4th paragraph of the syllabus is: 'Where from the evidence reasonable minds may reasonably reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict in the weight of the evidence.' We do not find its verdict was against the weight of the evidence.

What has been said applies with equal force to the contention of the defendant that the plaintiff did not sustain her claim to injury proximately caused by the defective operation of the escalator.

It is also asserted by the defendant that there was a complete failure of proof of negligence. Such a contention ignores the evidence which demonstrated injury to plaintiff caused by an agency wholly under the control of defendant; no reasonable explanation being given exonerating the defendant of blame in the operating of the mechanism.

It is to be observed also that the defendant owed to the plaintiff as a common carrier the highest degree of care. May Department Stores v. McBride, 124 Ohio St. 264, 178 N.E. 12.

The doctrine of res ipsa loquitur is stated by the Supreme Court in Weller, Ex'r, v. Worstall, 129 Ohio St. 596, pages, 600, 601, 196 N.E. 637, page 639:

'That doctrine is a rule of evidence peculiar to the law of negligence, and amounts to a qualification of the general rule that negligence is never presumed but must be affirmatively proved. Briefly stated, the doctrine is that where the instrumentality or thing which caused the injury complained of is shown to be under the management and control of a defendant, and the accident is such as in the ordinary course of events does not happen if proper management and control is exercised, it affords reasonable evidence, in the absence of explanation by such defendant, that the accident arose from want of care, and permits the inference of negligence. 29 Ohio Jurisprudence, 631, § 153, et seq., citing Ohio cases; 20 Ruling Case Law, 185, § 156; 45 Corpus Juris., 1193, § 768 et seq. It is founded on an absence of specific proof of acts or omissions constituting negligence.

'The Supreme Court of the United States said in Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, 819, Ann.Cas.1914D, 905, 907: 'In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.' And see the definition contained in Graham v. Badger, 164 Mass. 42, 41 N.E. 61.

'While the doctrine does not require that negligence must be inferred from the mere occurrence of an accident, if the accident and the circumstances under which it took place give ground for a reasonable inference that if due care had been exercised, the thing that happened amiss would not have happened, the law says 'res ipsa loquitur.' Wardman v. Hanlon, 52 App.D.C. 14, 280 F. 988, 992, 26 A.L.R. 1249.'

Giving the defendant the most advantageous construction, the evidence in this case, as previously noted, presented a question for the jury. In Glowacki, etc., v. North Western Ohio Ry. & Power Co., 116 Ohio St. 451, 157 N.E. 21, the second and third paragraphs of the syllabus are:

'2. Where the allegations in a petition and the evidence offered in support thereof call for the application of the rule of res ipsa loquitur, and where the defendant has offered evidence tending to meet and explain the circumstances, it is the duty of the court, when requested so to do by either party, to submit the question to the jury under proper instructions.

'3. The weight of the inference as well as the weight of the explanation offered to meet the inference is for the determination of the jury in a jury trial or for the determination of the court when the court is the trier of the facts.'

Again, we say, giving the defendant the most favorable construction of the case, for in view of the fact that the defendant denied the existence of the jerk, and also strenuously claims that that did not happen, which substantial evidence shows did happen, introducing evidence that the defect in the operation could not exist, it may be doubted whether any attempt was made to exonerate the defendant from the inference of negligence, consequent upon the unexplained fact of defect in operation of the mechanism.

Certainly, the defendant should not complain that the jury was given the opportunity to consider an explanation which it did not offer.

It is further claimed by the defendant that the jury in answer to a special interrogatory assigned specific negligence not alleged in the petition. The record shows the following to have occurred:

'1. Was the defendant negligent? Answer: Yes.

'2. If your answer is 'yes',...