Anderson v. McCarthy Dry Goods Co.

• Decision Date: 29 April 1908
• Citation: 95 P. 325,49 Wash. 398
• Court: Washington Supreme Court
• Parties: ANDERSON et al. v. McCARTHY DRY GOODS CO. et al.

95 P. 325

49 Wash. 398

ANDERSON et al. v. McCARTHY DRY GOODS CO. et al.

Supreme Court of Washington

April 29, 1908

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Peter Anderson and wife against the McCarthy Dry Goods Company and its receiver. Judgment for defendants. Plaintiffs appeal. Reversed and remanded for new trial.

John E Humphries and Geo. B. Cole, for appellants.

Kerr &amp McCord, for respondents.

ROOT J.

This was an action by appellants for damages alleged to have been sustained by appellant Mrs. Anderson on account of a personal injury received by a basket falling from an overhead carrier system in the store of the respondent company. From a judgment of nonsuit this appeal is prosecuted.

The material facts shown were about these: Mrs. Anderson entered respondent company's store to make some purchases, and while there in the capacity of a customer, a basket used upon respondent's carrier system conveying goods to and from the wrapping counter fell or was precipitated from the track and struck her. No evidence was introduced, except as to facts hereinbefore stated, showing or tending to show that the apparatus was improperly installed or out of repair. The evidence showed that the system was one of standard make and in general use. Appellants invoke the rule of res ipsa loquitur, asserting that the fact of the basket falling or being precipitated from the carrier track upon appellant under the circumstances mentioned was sufficient to establish a prima facie case of negligence as against respondent company. The rule of res ipsa loquitur must be invoked sparingly, and applied only where the facts and demands of justice make its application essential. Negligence is never to be presumed from the mere happening of an injury or accident. But, when certain physical conditions are established, together with certain happenings in connection therewith, it is sometimes permissible to deduce therefrom a conclusion of the fact of negligence. 'Though, as stated above, negligence is never presumed from the mere fact of injury, yet the manner of the occurrence of the injuries complained of or the circumstances surrounding may well warrant an inference or presumption of negligence; such a situation being described by the familiar phrase 'res ipsa loquitur.' As a matter of course, the application of the maxim in question depends on the peculiar facts and circumstances of each particular case. * * * The presumption which arises by virtue of the application of the maxim, 'res ipsa loquitur,' is usually referred to as a prima facie or rebuttable presumption, which, when it arises, merely shifts the burden upon the defendant to disprove the inferred existence of negligence by evidence that as a matter of fact all proper and reasonable care was employed.' 21 Am. & Eng. Enc. of Law, 512, 513. 'Sometimes the duty which the defendant owes to the plaintiff is of such a nature that proof that the accident happened to the plaintiff under certain circumstances will be of such legal value as to afford evidence of negligence on the part of the defendant, and make out a prima facie case in favor of the plaintiff. This is the doctrine of res ipsa loquitur, and it is not applied unless the thing causing the accident is under the control of the defendant or his servants, and the accident is of a kind which does not ordinarily occur if due care has been exercised. * * * It is therefore generally more correct to say that there are cases where the fact that the accident happened under given conditions, and, in connection with certain circumstances, will amount to evidence of negligence sufficient to charge the defendant. To illustrate this, let us take again the case of a traveler in the highway. While proof of the mere fact that he was struck and knocked down by some substance in front of A.'s building will not entitle him to recover damages of A., yet suppose that he is able to show (1) that he was struck by some solid substance; (2) that this substance was a bale of goods; (3) that, at the time it struck him, this bale of goods was being lowered from the window of a warehouse above the street; (4) that A. was owner of this warehouse. This, it has been held, will make out a prima facie case against A. But A. might rebut this prima facie case by showing (1) that the bale was being lowered without his knowledge by the servants of another person; or (2) that the traveler was himself one of the persons engaged in lowering the bale; or (3) that, although the plaintiff was using the sidewalk as a traveler, yet he had stopped, and was standing still under the window from which the bale was being lowered, and that he was warned of the danger and told to stand from under, but negligently failed to do so. * * * A person is lawfully on the street when an adjoining building falls down, injuring him. In a suit against the owner of the building, he makes out his case by showing the facts stated without more. The reason is that the owner of the building adjoining a street or highway is under a legal obligation to take reasonable care that it is kept in a safe condition, so that it will not fall into the highway, injuring persons lawfully there. If it did so fall, every fair-minded man would draw the inference that it had not been properly inspected and kept in repair; and, if the contrary were true, it is easy for the defendant to show that fact. In another case it appeared that the defendants, who occupied for business purposes the second and upper floors of a building, were hoisting a box, weighing about 500 pounds, to their rooms, by means of iron hooks attached to its sides. Just as it reached the second floor the hooks broke, and the box fell, broke through the hatchway on the first floor, and struck and injured the plaintiff, who was lawfully in the basement. This, without more, was held evidence of negligence on the part of the defendants warranting a verdict for the plaintiff. So proof of the fact that water escaped from the defendant's hydrant into the plaintiff's apartment in the story below makes out a prima facie case of negligence, which the defendant must excuse or pay damages. So the fact that tools or other objects fall from an elevated railroad and injure a person thereunder, in the absence of explanation, is generally held to raise a presumption of negligence on the part of the railroad company.' Thompson, Com. on Law of Neg. §§ 7635, 7636.

Ordinarily it must be a peculiar and exceptional case that will justify the invocation of this rule, except in cases against common carriers where it is frequently applied. However, where the proven or admitted physical conditions, together with the other established facts, show that the occurrence is one which could not ordinarily in the nature of things happen but for negligence on the part of defendant, and it further appears that negligent operation of the apparatus is naturally accompanied with danger, and its control and the knowledge of its condition...