Baker v. Coca Cola Bottling Works of Gary

• Decision Date: 25 October 1961
• Docket Number: No. 1,No. 19296,19296,1
• Citation: 177 N.E.2d 759,132 Ind.App. 390
• Parties: George BAKER and Hermina Baker, Appellants, v. COCA COLA BOTTLING WORKS OF GARY, an Indiana corporation, Appellee
• Court: Indiana Appellate Court

Page 759

177 N.E.2d 759

132 Ind.App. 390

George BAKER and Hermina Baker, Appellants, v. COCA COLA BOTTLING WORKS OF GARY, an Indiana corporation, Appellee.

No. 19296.

Appellate Court of Indiana, Division No. 1.

Oct. 25, 1961.

Green, Powers, Belshaw & Danko, Whiting, Smith & Smith, LaPorte, of counsel, for appellants.

Albert Gavit, Sr., and Fred F. Eichhorn, Sr., of Gavit & Eichhorn, Gary, Frederick Link, LaPorte, for appellee.

COOPER, Judge.

The appellants brought this action to collect damages from appellee in two paragraphs, one paragraph being for alleged personal injuries and the second to recover damages incurred in the payment of medical expenses as the result of the personal injuries.

It appears from the record that at the conclusion of appellants' evidence, appellee moved for a peremptory verdict in their favor. The trial court sustained the motion, the requested peremptory instruction was given and the verdict was so returned. A final judgment was rendered in favor of appellee.

Within the time allowed, appellants filed their motion for a new trial charging the trial court erred in sustaining the motion for a directed verdict for defendant, appellee, and also erred in giving a written instruction directing a verdict for the defendant-appellee and that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Thereafter, the trial court denied said motion for new trial. The error assigned before us is the overruling of the appellants' motion for new trial.

It is also apparent from the following pertinent first eight paragraphs of the appellants' amended complaint they were pleading and attempting to establish negligence under the doctrine of 'res ipsa loquitur':

'1. That the defendant is a corporation incorporated under the laws of the State of Indiana, with its principal office located at Gary, Indiana;

'2. That on or about the 2nd day of July, 1951, the defendant was a manufacturer of and a dealer in soda pop beverages, including a certain cola drink advertised and sold under the trade name of Coca Cola;

'3. That on or about the aforementioned date, the plaintiff, Hermina Baker, purchased a carton of said cola from Sandy's I.G.A. Store, Lauerman's Road, Cedar Lake, Indiana, a retailer of said beverage, the said carton consisting of six (6) six (6)-ounce bottles of said cola, which bottles were set in a cardboard container furnished by the defendant for the purpose of convenience and comfort in handling of the same;

'4. That previous to the purchase of the said cola by the plaintiff, Hermina Baker, the said beverage was delivered to the said retailer by the said defendant, and was not handled or moved at any time by the said retailer or anyone except in the exercise of due care;

'5. That at the time the plaintiff, Hermina Baker, picked up the said carton of cola to purchase the same, the said carton of cola was setting in an upright position on the floor of the said retailer's store in a location where no abnormal atmospheric temperature existed at the said time and on the said day;

'6. That upon purchase of the said cola, the said plaintiff, Hermina Baker, held the said carton at her right side and proceeded on foot to take the same to her home, but as she proceeded in the direction of her home, one of said bottles of said cola exploded, injuring and shocking this plaintiff, and causing her to become frightened and fall to the ground;

'7. That the plaintiff, Hermina Baker, was in the exercise of due care and caution in her actions at all times mentioned herein;

'8. That the explosion of the said bottle of the said cola was the result of negligence on the part of the defendant in the manufacturing, bottling or handling of the said cola, the exact and specific negligence being unknown to the plaintiffs, but better known, or capable of being known, to the defendant; * * *.'

The appellants contend in this appeal that: 'I. From an examination of the appellants' evidence, facts and all reasonable inferences to be drawn therefrom, a prima facie case is established under the res ipsa loquitur rule. II. From an examination of the law, the weight of authority supports the appellants' position under the res ipsa loquitur rule.'

Therefore, the crux of the principal questions presented to us by this appeal is whether the doctrine of res ipsa loquitur is applicable in this case under the evidence introduced by the appellants.

Generally, it is the law that the mere fact of an injury will not give rise to a presumption of negligence on the part of anyone, under the doctrine of res ipsa loquitur, an expression which means literally, the thing speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference, of negligence on the part of the defendant.

It appears the doctrine is a qualified exception to the general rule that the mere fact of injury will not create an inference of negligence. We find the following statement in § 295, Negligence, 38 Am.Jur., p. 989:

'* * * The conclusion to be drawn from the cases as to what constitutes the rule of res ipsa loquitur is that proof that the thing which caused injury to the plaintiff was under the control and management of the defendant, and that the occurrence was such as in the ordinary course of things would not happen if those who had its control and management used proper care, affords sufficient evidence, or, as sometimes stated by the courts, reasonable evidence, in absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care.'

See also Union Traction Co. v. Berry, Admr., 1919, 188 Ind. 514, 121 N.E. 655, 124 N.E. 737, 32 A.L.R. 1171; City of Decatur v. Eady, 1917, 186 Ind. 205, 115 N.E. 577, L.R.A.1917E, 242; Cleveland, etc., R. Co. v. Hadley, 1907, 170 Ind. 204, 82 N.E. 1025, 84 N.E. 13, 16 L.R.A.,N.S., 527, 16 Ann.Cas. 1.

It seems the doctrine does not apply where there is direct evidence as to the precise cause of the injury and all the facts and circumstances attending upon the occurrence appear. See 38 Am.Jur., p. 992, § 296.

It is true in a proper res ipsa case, proof of the occurrence and attendant circumstances permits an inference of defendant's negligence which, though rebuttable, cannot be disregarded by the triers of fact, but must be weighed against the evidence adduced by the defendant.

Usually the doctrine is inapplicable unless the control or right (and duty) of control of the intrumentality causing the injury is in defendant at the time of the injury, although some cases hold that it is sufficient to prove that the instrumentality was in the possession and control of the defendant at the time the negligent act was committed, together with further proof of the obsence of any cause intervening between the negligent act and the injury. See 65 C.J.S. Negligence § 220(8) bb, p. 1014; 4 A.L.R.2d 466.

In Indiana, we follow the foregoing theory. In the recent case of New York, Chi., etc. R. R. Co. v. Henderson, 1957, 237 Ind. 456, at pages 462, 463, 146 N.E.2d 531, at page 536, 147 N.E.2d 237, the following statement was made by Judge Arterburn:

'Negilgence, as any other fact or condition, may be proved by circumstantial evidence, and it has been urged that there is nothing distinctive about the doctrine of res ipsa loquitur, since it involves merely the permissible drawing of an inference of negligence from certain surrounding facts. This no doubt is true except that the law permits the inference of negligence to be drawn under certain sets of facts known as res ipsa loquitur. The basis or reasoning for this principle, in its origin at least, seemed to have been that the defendant had exclusive control over the injuring agency and the plaintiff normally had no access to any information about its control and operation. 3 Cooley on Torts (4th ed.) sec. 480, p. 369.

'Frequently it is said the doctrine is applicable and negligence may be inferred 'where the thing (injuring instrumentality) is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.' Scott v. London & St. Katherine Docks Co. (1865), 3 H. & C. 596, p. 601; 159 Eng.Rep. 665, p. 667.'

Judge Emmert, in his concurring opinion in the case of New York, Chi., etc., R. R. Co. v. Henderson, supra, 237 Ind. at pages 478, 479, 146 N.E.2d at page 544, stated:

'The Indiana cases on res ipsa loquitur generally support the definition given in Pittsburgh, etc. R. Co. v. Arnott, [Admx.] 1920, 189 Ind. 350, 368, 126 N.E. 13, 19, which is as follows:

"It is well settled that when the instrumentalities which produce an accident are under the exclusive charge of the defendant or his servants, and when the accident is such as does not occur in the ordinary course of events if those in charge use proper care, proof of the accident is sufficient to create a prima facie case of negligence, which will prevail unless it is met by evidence to show that the accident could not have been avoided by due care on the part of the defendant.'

'See Prest-O-Lite Co. v. Skeel, 1914, 182 Ind. 593, 599, 600, 106 N.E. 365; Wass v. Suter, 1949, 119 Ind.App. 655, 659, 84 N.E.2d 734.

'It is a rule of evidence. Fleming v. Pyramid Coal Corp., 1951, 122 Ind.App. 41, 44, 100 N.E.2d 835; Wass v. Suter, 1949, 119 Ind.App. 655, 84 N.E.2d 734, supra. It does not dispense with the rule that he who alleges negligence must prove it by a fair preponderance of the evidence. Kickels v. Fein, 1937, 104 Ind.App. 606, 615, 10 N.E.2d 297; 65 C.J.S. Negligence § 220(3), pp. 993, 994. It does not create a prima facie presumption of negligence.' (Our emphasis.)

Judge Bobbitt stated further in his dissenting opinion in the case of New York, Chi., etc. R. R. Co. v. Henderson, supra, 237 Ind. at page 488, 146 N.E.2d at page 548, that:

'It...