Bergley v. Mann's

• Decision Date: 10 December 1959
• Docket Number: No. 7789,7789
• Parties: Madge BERGLEY, Plaintiff and Respondent, v. MANN'S, a Corporation, and Frank Risovi and Mike Kurtz, also known as Michael Kurtz, a Partnership, Defendants, and Frank Risovi and Mike Kurtz, also known as Michael Kurtz, a Partnership, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 849

99 N.W.2d 849

Madge BERGLEY, Plaintiff and Respondent, v. MANN'S, a Corporation, and Frank Risovi and Mike Kurtz, also known as Michael Kurtz, a Partnership, Defendants, and Frank Risovi and Mike Kurtz, also known as Michael Kurtz, a Partnership, Defendants and Appellants.

No. 7789.

Supreme Court of North Dakota.

Dec. 10, 1959.

Syllabus by the Court

1. Where the thing that caused the plaintiff's injury is shown to be under the control of the defendant and the accident is such that it does not ordinarily happen in the absence of negligence on the part of the controlling defendant the doctrine of res ipsa loquitur warrants an inference of negligence. This inference is generally sufficient to make out a prima facie case for the plaintiff and casts upon the defendant the burden of going forward with the evidence in an effort to overcome the inference.

2. The trier of facts is not required to accept the uncontradicted evidence of an uncorroborated interested party and such evidence does not overcome, as a matter of law, an inference properly arising under the doctrine of res ipsa loquitur.

3. The possessor of land over which there is a public highway is subject to liability for injuries caused to travelers thereon by failure to exercise reasonable care in the construction or maintenance of any structure which he has been permitted to create in or on the highway for his sole benefit subsequent to its dedication.

4. The plaintiff who was lawfully upon the sidewalk sometimes standing and sometimes moving about while viewing an exhibition of automobiles in the street, although the purpose of her presence was one of pleasure, is held to have been in the position of a traveler and not a mere licensee of adjacent property owners.

5. The application of the rule of res ipsa loquitur does not shift the burden of proof. It abides with plaintiff throughout the trial and renders it incumbent upon him to prove the defendant's negligence by a preponderance of all the credible evidence.

6. The inference arising under the doctrine of res ipsa loquitur operates as evidence in the sense that it, together with evidence of the circumstances surrounding the accident, may create a prima facie case in favor of the plaintiff and may be considered by the jury in reaching its final verdict.

7. Although an instruction standing alone may be erroneous it must be considered in connection with the remainder of the charge to the jury and if the instructions as a whole correctly advise the jury as to the law the error will not be considered prejudicial.

Duffy & Haugland, Devils Lake, for appellants.

Douglas B. Heen and David Garcia, Devils Lake, for plaintiff-respondent.

MORRIS, Judge. On reassignment.

This is an action for personal injuries which plaintiff alleges that she received as a result of the negligence of the defendants. The defendant Mann's, a corporation, operates a department store in the City of Devils Lake. The defendants Frank Risovi and Mike Kurtz, copartners, were employed by Mann's to install a new store front. In doing their work they erected a temporary false front which was a wooden structure approximately 25 feet wide, 16 feet high and 4 feet doop. In sat on the sidewalk and extended out 4 feet from the building to which it was attached by braces at each top corner. The braces were now one-by-four lumber nailed to the building at one end and to the false front at the other. The false front was constructed mostly of two-by-fours and three-quarter inch Nuwood sheeting. It was perpendicular. There was about 4 feet of unobstructed sidewalk between the base of the front and the curb.

On May 19, 1957 while the plaintiff was standing on the sidewalk the false front parted from the building at the top and fell outward across the unobstructed portion of the sidewalk and partly into the street trapping the plaintiff beneath it and injuring her.

The jury rendered a verdict against the defendants Risovi and Kurtz and dismissed the suit against Mann's. The partners appeal from a judgment entered pursuant to the verdict. They made a motion in the alternative for a judgment notwithstanding the verdict or for a new trial. From an order denying this motion they also appeal.

At the close of the testimony the appellants made a motion for directed verdict. Among the grounds stated was that the undisputed evidence shows that the false front was properly and safely constructed and that there was no negligence on the part of the appellants in the construction or maintenance thereof. It was further urged that there is evidence of an intervening human cause, namely the milling and pushing of a crowd that was watching an automobile exhibition and that there is no evidence of negligence on the part of the appellants.

The appellants contend in support of their motion for a judgment notwithstanding the verdict that the doctrine of res ipsa loquitur is not applicable under the record here presented and that without the application of the doctrine the evidence is wholly insufficient to warrant the jury in determining that the appellants were negligent. In support of this contention it is asserted that the testimony of Risovi negatives any inference of negligence of the appellants in constructing or maintaining the false front and that its fall was probably due to the milling and jostling of a crowd of spectators who were viewing an automobile exhibition on the street.

Risovi testified in detail as to the manner in which the front was constructed including the type and kind of lumber and the size and number of the nails used in securing it is place. He says that he directed the moving of the front from another location to the Mann's store and supervised and inspected its attachment to the building by means of the one-by-four boards which were of new lumber. He stated that he had 40 years experience, that he had built many false fronts, had always built them in the same way and attached them to the building in the same manner. He testified that he had been a foreman of other contractors who built the fronts in the same way and that in this instance the front was built and tied to the building in the regular way. When the top of the false front pulled away from the building at the beginning of its fall the one-by-four braces broke. The nails did not pull out. Photographs of the scene taken after the accident, as well as Risovi's statement, indicate this to be true.

The accident took place on Sunday afternoon. No work was being done on Sunday. Some material and tools had been stored inside the false front on Saturday night. There was a wheelbarrow, a water barrel and some mortar mix on top of it. These items were standing in their original position after the fall. Some bricks had been stacked on the sidewalk inside the front. These were scattered about. There was also some iron scaffolding which Risovi testified was leaning against the building. The pictures indicate that this scaffolding and a stepladder had fallen outward when the front collapsed.

On the Sunday afternoon that the accident happened an exhibition or small Canadian cars took place on the street in the block in which Mann's store was located and in the adjacent block. A policeman who was assigned to prevent the spectators from coming out into the street estimated the crowd at four or five hundred people in the two blocks. Another witness estimated the crowd at two to three hundred. They were mostly on the sidewalk on both sides of the street and moved back and forth along the two blocks where the demonstration was taking place. There was nothing unusual about the crowd and nothing unusual about the people in front of Mann's store. At one time five to nine people were seen leaning against the false front. There were at least thirty people in front of it when it began to fall.

The plaintiff does not know what caused the front to fall and invokes the doctrine of res ipsa loquitur to establish the appellants' negligence. This frequently quoted explanation of the doctrine by the Supreme Court of the United States is found in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.1914D 905:

'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.'

Where the thing that caused the plaintiff's injury is shown to be under the control of the defendant and the accident is of such a nature that it does not ordinarily happen in the absence of negligence on the part of the controlling defendant it affords an inference of negligence which is ordinarily sufficient to make out a prima facie case for the plaintiff and casts upon the defendant the burden of going forward with the evidence. Shearman and Redfield on Negligence, Revised Edition, Section 56; 38 Am.Jur., Negligence, Sections 295 and 311; 65 C.J.S. Negligence § 220(2), (9).

A study of many cases from other jurisdictions discloses that the general rule of res ipsa loquitur is easily stated but its application is fraught with difficulties and solutions in this respect have not always been consistent. The appellants argue that the defendant Risovi explained in detail the manner in which the false front was erected and attached to the building and the manner in which tools and other articles were stored within the front on Saturday night. It is...