Fink v. New York Cent. R. Co.

• Decision Date: 02 August 1944
• Docket Number: 29877.
• Parties: FINK v. NEW YORK CENT. R. CO. et al.
• Court: Ohio Supreme Court

56 N.E.2d 456

144 Ohio St. 1

FINK v. NEW YORK CENT. R. CO. et al.

No. 29877.

Supreme Court of Ohio

August 2, 1944

Syllabus by the Court.

1. The rule of res ipsa loquitur applies where it is alleged in a petition and established by the evidence that a passenger on a railroad train was injured by the derailment of the train which was under the exclusive management and control of the defendant.

2. In Ohio the rule of res ipsa loquitur is not a rule of substantive law but is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury was under the exclusive management and control of the defendant and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. (Glowacki, a Minor, v. North Western Ohio Ry. & Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486, approved and followed.)

3. The trial court, in a jury trial, in a case which calls for the application of the rule of res ipsa loquitur, is without authority to declare, as a matter of law, that the inference of negligence which the jury is permitted to draw, has been rebutted or destroyed by an explanation of the circumstances offered by the defendant, and such action on the part of the trial court is an invasion of the province of the jury.

4. 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 the defendant has offered evidence tending to meet and explain the circumstances, it is the duty of the court, when requested so to do, to submit the question to the jury under proper instructions.

5. The weight of the inference of negligence which the jury is permitted to draw in such a case, as well as the weight of the explanation offered to meet such inference, is for the determination of the jury.

Appeal from Court of Appeals, Hamilton County.

In the statement of facts and in the opinion, John C. Fink will be designated as plaintiff and the New York Central Railroad Company and the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, as defendants.

Plaintiff brought an action for personal injury against defendants in the Court of Common Pleas of Hamilton county, Ohio. The issues were made by the allegations of the petition, the separate and several amended answer of the defendants and the reply.

Plaintiff after alleging the corporate existence of the defendants alleges that he was in the employ of the United States government as a railway mail clerk; that at the time of his injuries he was engaged in the performance of his duties upon a certain mail car which was a part of a train being operated from Cincinnati to Chicago by the defendants; and that on the morning of December 19, 1941, at about 2:45 a. m. at Montmorenci, Indiana, the defendants carelessly and negligently caused or permitted the train to be derailed whereby plaintiff was injured.

The answer admits all of the allegations of the petition except that the defendants caused or permitted the derailment and sets out the common law of Indiana with reference to the duty imposed upon common carriers to their passengers.

The reply denies that the common law of Indiana is correctly set out in the answer.

Upon the trial the plaintiff proved that on the date and at the time and place alleged in the petition the mail car was derailed and the plaintiff was injured.

The plaintiff thereupon rested his case. Defendants' motion for a directed verdict was overruled.

Thereafter, defendant offered evidence to the effect that within about five minutes prior to the accident, an automobile had been overturned upon the tracks of the railroad company due to the negligence of a third person; that the derailment of the train was caused by the engine coming into collision with the overturned unlighted automobile; that the speed of the train was approximately 80 miles per hour; and that when the engineer observed the obstruction on the track he used every possible means to avoid collision, but was unable so to do.

The plaintiff in rebuttal offered evidence to the effect that the emergency brakes were not applied, nor was the speed of the train slackened prior to the collision.

The plaintiff tried his case upon the theory that the maxim res ipsa loquitur applied. He did not allege in his petition, or prove in his case in chief, any specific act of negligence on the part of the defendants.

The court overruled the defendants' motion for a directed verdict at the conclusion of all the evidence. The trial judge, however, failed to charge the jury upon the rule of res ipsa loquitur and upon being requested to do so, made the following statement: 'I want the record to show, if it does not now show that, I so charged on the theory that the case started out having the aspects of a res ipsa loquitur case, but after all the evidence was concluded it lost the characteristic or characteristics of a res ipsa loquitur and that is my reason.'

The jury returned a verdict in favor of defendants and judgment was entered thereon.

On appeal on questions of law, the Court of Appeals, reversed the judgment on the sole ground 'that the trial court erred in refusing to instruct the jury and submit for the consideration of the jury the application of the doctrine of res ipsa loquitur, thus depriving plaintiff-appellant of the doctrine to his prejudice.'

The case is here for review following the allowance of a motion to certify the record.

Harry N. Routzohn, of Dayton, and S.W. Baxter and T. A. McCormack, both of Cincinnati, for appellants.

Edward M. Ballard, of Cincinnati, for appellee.

BELL Judge.

This case presents the single question: 'Was the Court of Appeals correct in holding that the plaintiff was entitled to a charge upon the doctrine of res ipsa loquitur?'

This doctrine has been the subject of much confusion and great divergence of opinion. The adjudicated cases and the text-writers are not in agreement as to what the doctrine really is or how or when is should be applied. Time and space prohibit any attempt to harmonize the confusion and conflict presented in the cases.

It is the general rule, so well established as to need no citation of authority, that negligence is never presumed and, therefore, in a negligence case the burden of proof of negligence is upon the party complaining.

Some courts regard the rule of res ipsa loquitur as an exception to this general rule. It would seem that the better view is that in a case in which the rule is applicable, the trier of the facts is permitted to infer negligence from the circumstances surrounding the injury.

An examination of the early cases wherein the rule was first recognized clearly discloses that it had its origin in the law of necessity. The particular justice of the doctrine rests upon the foundation that the true cause of the occurrence whether innocent or culpable is within the knowledge or access of the defendant and not within the knowledge or access of the plaintiff.

The leading English case, decided in 1863, which was one of the first to formulate that specific rule, is Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Reprint 299.

In that case the plaintiff was walking along a public street and was struck by a barrel of flour falling from a window. The plaintiff brought an action based upon negligence. On the trial he could testify only that he was struck and injured by a falling object. One of his two eyewitnesses testified that he saw the barrel falling, the other that he saw it strike the plaintiff, but plaintiff could offer no evidence as to how or why the barrel fell. The trial court nonsuited plaintiff for failure to prove negligence. Upon review the Court of Exchequer unanimously held that the nonsuit was erroneous and that plaintiff had in effect offered evidence sufficient to sustain a verdict for damages upon proof of injury, under those circumstances.

In 1870, in the case of Kearney v. London B. & S. C. Ry. Co., L. R., 5 Q. B. 411, it was held that the falling of a brick upon the plaintiff from a wall in a bridge which was under the exclusive management and control of the defendant, amounted to sufficient evidence of negligence to warrant a jury in finding a verdict in plaintiff's favor.

Later the doctrine was applied to railroad derailment cases and finally in many jurisdictions to other classes of tort actions, provided always that the instrumentality which caused the injury was under the exclusive management and control of the defendant and that the injury occurred under such circumstances as could give rise to the conclusion that the injury would not have occurred if ordinary care had been exercised.

In some jurisdictions it is held that the doctrine is one of substantive law while in others it is hold to be a rule of evidence. This in some measure accounts for the irreconcilable conflict in the decisions.

In those jurisdictions where the doctrine is held to be a rule of substantive law, proof of facts which give rise to the application of the rule requires the defendant to assume the burden of proving himself free from negligence. In jurisdictions where the doctrine is held to be a rule of evidence, proof of facts which give rise to the application of the rule calls upon the defendant for explanation, in the absence of which a verdict for the plaintiff will be sustained.

In those jurisdictions where res ipsa loquitur is held to be a rule of substantive law, it is held that the proof of a state of facts calling for the application of the rule creates a presumption of negligence, while in those jurisdictions where res ipsa loquitur is...