Ginn v. Penobscot Co.

• Citation: 334 A.2d 874
• Parties: Charles R. GINN and Lois Ginn v. PENOBSCOT COMPANY.
• Decision Date: 05 March 1975
• Court: Supreme Judicial Court of Maine (US)

Page 874

334 A.2d 874

Charles R. GINN and Lois Ginn v. PENOBSCOT COMPANY.

Supreme Judicial Court of Maine.

March 5, 1975.

Gross, Minsky, Mogul & Singal by Jules L. Mogul, Bangor, for plaintiffs.

Rudman, Rudman & Carter by Gene Carter, John M. Wallach, Bangor, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DUFRESNE, Chief Justice.

The defendant, Penobscot Company, appeals from a judgment obtained in the Superior Court (Penobscot County) on account of personal injuries suffered by Charles R. Ginn (plaintiff) and for consequential damages flowing therefrom, the corporate appellant claiming reversible error in the denial of its motion for judgment n. o. v. and for a new trial, as well as for other alleged trial mistakes.

The accident happened on June 8, 1970. The plaintiff husband, Charles R. Ginn, was then a healthy and rugged self-employed woods operator engaged in cutting, transporting and selling pulp wood as an independent business operation. Ginn was 40 years of age at the time of the accident and 42 at the time of trial. The parties stipulated that the life expectancy of the average American male at age 42 was 29.7 years while his work expectancy was 25 years. As a result of the injuries received, Mr. Ginn is an invalid, dependent on others for the performance of the most basic human tasks. The jury returned a verdict for the plaintiffs in the amount of $458,611.01 and the defendant appeals from the ensuing judgment.

The evidence discloses that the accident which led to Mr. Ginn's persent condition took place in the wood yard of the defendant Penobscot Company. On June 8, 1970 in the afternoon Mr. Ginn drove in the yard with his truck carrying a load of pulpwood cut up in lengths of four feet and bound together in tiers by cables. The tiers were held on the body of the truck by stakes which, in turn, were linked together to keep the wood load in place. Stopping at the 'scaler's shack' to get a measure of his load, Mr. Ginn then proceeded to park his truck near the defendant's wood pile at a spot marked for unloading vehicles. The defendant's authorized agent had selected the unloading zone which Mr. Ginn was obliged to use if he wanted his truck to be unloaded.

The unloading process, as was the usual custom, required Mr. Ginn to get out of the cab of his truck and climb upon his load. In assisting the defendant's crane operator, Mr. Ginn would unfasten the binder which held a tier of wood onto the truck and attach the crane cables to the cables which bound the tier of wood together. Upon a signal from Mr. Ginn, the crane operator would swing the tier off the truck and convey it to the point on the wood pile where he wanted the pulp to drop. When dropped on the pile, the cables holding the tier of wood together would loosen and the logs would fall out onto the pile. While the wood was being taken away to be dumped by the crane operator, Mr. Ginn would turn his attention to the next tier to be unloaded. With his back to the wood pile, he would unfasten the binder on the next tier of logs in preparation for the return of the crane cables.

On the date of the accident, this process was followed and the first two tiers of wood from Mr. Ginn's truck were unloaded without incident. The third tier was attached to the crane cables in like manner and was lifted towards the pile. Mr. Ginn testified that he observed the crane drop the load on the pile, but, when the cables were raised up after the drop, one log remained teetering on them. He further testified that this was not an unusual occurrence in the wood lot and that, generally, when a log remained on the sling, the crane operator would merely drop the cables a second time to dislodge the remaining piece of timber.

Testimony establishes that, at this point, Mr. Ginn turned away from the wood pile toward the fourth and remaining tier of logs. His purpose in doing so was to release the final set of binders which held the tier on the truck. At this point, Mr. Ginn testified, he was suddenly struck from behind by a great force and driven against the fourth tier. He further stated that, after this impact and while lying in the bed of the truck, the crane cables were dropped upon his chest. (This latter testimony was disputed by the defendant).

I

The first issue we must consider is the applicability of the doctrine of res ipsa loquitur. The defendant contends that the trial Court erred in instructing the jury that it could apply the doctrine in the instant case. Beyond this threshold allegation of error, the defendant further maintains that, even if this was not error, the presiding Justice, nevertheless, erred in failing to instruct the jury that, in order to so apply the doctrine, they must first have found that the instrumentality cousing the plaintiff's injuries was under the exclusive management and control of the defendant. We will treat these two contentions together.

We have defined the doctrine in the following manner:

'The maxim of res ipsa loquitur, 'the thing itself speaks,' might, in practice, be translated, 'the accident spells negligence.' It does not dispense with the requirement that the one who alleges negligence must prove it. It is a rule of evidence that relates to the mode of proof. It is applicable, where there has been an unexplained accident, and the instrument that caused the injury was under the management or control of the defendant, and in the ordinary course of events the accident would not have happened if the defendant had used due care.' Stodder v. Coca-Cola Bottling Plants, Inc., 1946, 142 Me. 139, at 142, 48 A.2d 622, at 624.

See also Corbett v. Curtis, Me., 1967, 225 A.2d 402; Cratty v. Samuel Aceto & Co., 1955, 151 Me. 126, 116 A.2d 623.

In considering the propriety of the use of the doctrine in this case, we will first determine whether the accident is unexplained as required under the rule. The evidence does support a finding that the plaintiff was struck on the back by an object with that degree of potency which he describes in his testimony as a 'tremendous force.' By reason of the accident he suffered great physical pain and extensive loss of normal body functions. The facts of this case present a situation analogous to that in Nichols v. Kobratz, 1942, 139 Me. 258, 29 A.2d 161. In Nichols, this Court held that the doctrine of res ipsa loquitur was appropriately applied, where a customer in a meat store was struck by a meat hook which rolled out of a refrigerator and into the store. There was no evidence which explained the cause of the occurrence. We do conclude as we did in Nichols that the accident here in question is of such an unexplained character as to satisfy the first element of the maxim res ipsa loquitur.

While it has been established that the accident happened and, as has been stated, is of an unexplained nature, the mere fact that the accident occurred does not determine whether res ipsa loquitur may be applied. 'The character of the accident, rather than the fact of the accident, decides, as a legal proposition, whether the doctrine applies.' Chaisson v. Williams, 1931, 130 Me. 341, 347, 156 A. 154, 157; see also Duchaine v. Fortin, 1963, 159 Me. 313, 192 A.2d 473.

When we refer to the 'character of the accident,' we mean that quality of the occurrence which gives rise to the inference that such an event would not have taken place but for the presence of some one's negligence. It is not enough that the accident merely be unusual or its cause unknown. It is the manner in which the accident occurred and the attending circumstances which determine whether res ipsa loquitur is an appropriate device. Capps v. American Airlines, 1956, 81 Ariz. 232, 303 P.2d 717.

We believe that here there is more than just an unusual accident. Under the totality of the circumstances established by the evidence at trial, the character of the occurrence was such that it gave rise to a permissible inference of negligence as an underlying cause. The testimony of Joseph Butera, the operator of the crane, justified the conclusion that there was no apparent mechanical defect in his machine and that, on the date of the accident, it was operating normally. Coupled with the circumstance that Mr. Ginn testified to the presence in the cables of one log which remained unreleased after the drop of the third tier and was teetering in the air shortly prior to the accident, the evidentiary record in this case satisfies us that the accident was of the 'kind which does not, according to the common experience of mankind, occur if due care has been exercised.'

As stated in J. & Jay, Inc. v. E. Perry Iron & Metal Co., Inc., 1965, 161 Me. 229, 210 A.2d 462:

'(D)amage does not ordinarily flow from the shifting or dropping of a load in the operation of a crane in the absence of negligence.'

II

The presiding Justice instructed the jury that, as a prerequisite to the application of the res ipsa loquitur rule, the plaintiff had to prove the instrumentality causing the injury was under the management or control of the defendant. It is claimed that such instruction was inadequate and effected reversible error by failing to phrase this aspect of the rule in terms of 'exclusive control' of the injury-causing instrumentality. We disagree.

In Corbett v. Curtis, Me., 1967, 225 A.2d 402, at page 406, upon consideration of this very issue, this Court decided that, in the application of the maxim of res ipsa loquitur in Maine, the preferable test is whether the instrument causing the injury was 'under the management and control' of the defendant as against under his 'exclusive' control. Thus, the jury instruction was proper.

Furthermore, the presiding Justice elaborated on this aspect of his charge, as follows:

'(B)y a preponderance of the evidence, you must be able to eliminate as responsible causes, causing causes, the conduct of the plaintiff and/or third persons. In other words, putting...