Glowacki v. Ry. & P. Co.

• Decision Date: 11 May 1927
• Docket Number: 20165
• Citation: 157 N.E. 21,116 Ohio St. 451
• Parties: Glowacki, A Minor, v. The North Western Ohio Ry. & Power Co.
• Court: Ohio Supreme Court

157 N.E. 21

116 Ohio St. 451

Glowacki, A Minor, v. The North Western Ohio Ry. & Power Co.

No. 20165

Supreme Court of Ohio

May 11, 1927

Negligence - Res ipsa loquitur a rule of evidence - Permitting jury to draw inference of negligence, when - Inference not controlling upon, but to be considered by jury, when - Court may draw like inference when trier of facts - Court to submit question to jury, when - Weight of inference and of explanation thereof for jury or court, when.

1. The rule of res ipsa loquitur is not a substantive rule of law. It is rather 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 is under the exclusive management and control of one of the parties and an accident occurs under circumstances where in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions. A like inference under like circumstances may be drawn by the court when the court is the trier of the facts.

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

3. The weight of the inference as well as the weight of the explanation offered to meet the inference is for the determination of the jury in a jury trial or for the determination of the court when the court is the trier of the facts.

Laura Glowacki, a child of approximately 5 years, was seriously injured on July 5, 1923, at about 10 o'clock in the morning, while playing in the public highway in front of and near to the residence of her parents near Gypsum in Ottawa county, Ohio, by picking up a live wire carrying 2300 volts of electricity, one end of which wire was detached and lying upon the ground and suspended from a pole of the defendant company erected in said highway. It was alleged in the amended petition as negligence that the defendant failed "to provide against the separation of said wire over, and its precipitation upon said public highway." The defendant answered admitting its ownership and operation of an interurban electric railway, and that it was engaged in the manufacture and distribution of electric light and power current to people along and adjacent to said electric line. The answer further admitted the maintenance and operation of an electric feed wire in and upon the public road running north and south through the hamlet of Gypsum and that said electric feed wire is maintained and operated by defendant upon poles set up by defendant. As a special defense it was alleged:

"That some time during the night of July 4, 1923, some person while shooting firearms, shot a feed wire, belonging to this defendant, in two by striking the same with a bullet, and that this defendant had no knowledge that said feed wire had been so shot off during the night of July 4th, until after the said Laura Glowacki was injured."

This special defense was traversed by the reply. At the trial the plaintiff introduced evidence of location of the wire, the voltage it carried, the nature and character of the injuries to the child, and that the customers of defendant were deprived of light after about 9:45 p. m. on July 4th. The plaintiff introduced no evidence to show a defective condition of the wire, either in regard to its original construction or subsequent maintenance. On cross-examination, one of the witnesses of the plaintiff testified that the wire was a good wire, in good condition, and well insulated. Another of plaintiff's witnesses testified on cross-examination that he had knowledge of the four wires on that line in the summer of 1923, and that they were in first-class condition. Neither of these witnesses testified from any knowledge of an inspection of the wires before the time of the casualty. The defendant introduced evidence tending to show that the wire was shot off by a bullet fired from a.45 caliber pistol. A cartridge was found on the ground near the place, and the ends of the wire were introduced in evidence, and it was claimed that the ends of the wire indicated a severance by means of a bullet. There was further evidence of shots having been heard by persons in the neighborhood at about the hour when the lights went out. Plaintiff offered no direct evidence as to the cause of the severance of the wire, except by cross-examination of one of defendant's witnesses, one Mr. Whaley, who stated that the marks on the wires were caused by "nipping of the pliers." Whether this nipping referred to the point where the wire was severed, or refers to the removal of the ends of the wires in order to produce them as evidence in the case, does not clearly appear. It will be assumed for the purpose of this review that the nipping referred to the severance of the ends of the wires and not to the point of severance which caused the wire to fall. Upon this state of the record the court charged the jury as follows:

"Now, if you find from the evidence that the wire in question was at the time and place of plaintiff's injuries the property of the defendant and that said wire was at said time and place under the management and control of the defendant, and that it was then and there charged by the defendant with a dangerous current of electricity, and that said wire was broken and lying in the highway at the time and place of plaintiff's injuries, and that she was injured by coming in contact with said wire in the manner claimed by her in her petition, then I instruct you that a presumption of negligence arises on the part of the defendant company in the construction, management, and maintenance of said wire, and casts upon the defendant the burden of meeting such presumption. Such presumption need not be overcome by the defendant by a preponderance of the evidence. If the defendant company produces sufficient evidence to balance such presumption, the presumption is overcome. Of course, if the defendant company produces evidence to overcome such presumption-that is, of greater weight than the presumption-then the presumption is removed. If you find from the evidence that the wire in question was broken at said time and place by a bullet shot against it and that this was the sole and proximate cause of the breaking of said wire at said time and place, then the said presumption of negligence as to the construction, management, and maintenance of said wire on the part of the defendant is rebutted and overcome. If you find from the evidence that said presumption has been overcome, then I charge you that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence, that the breaking and falling of said wire was caused by the negligence of the defendant in the construction, management, and maintenance of said wire, or in one or more of said ways."

The jury returned a verdict in the sum of $6,000, upon which judgment was entered, and error was later prosecuted to the Court of Appeals. That court reversed the judgment of the trial court on the ground that the trial court had applied the maxim of res ipsa loquitur in that portion of the charge above quoted, and that in the state of the record that doctrine should not have been charged, and that therefore prejudicial error intervened. From the opinion of the Court of Appeals we quote the following:

"It follows that no inference can be drawn from all the evidence except that the cause of the falling of the wire was that it was struck by a bullet discharged from a firearm, fired by some third person not shown to be connected with the defendant company. The proof as to the cause of the wire being down rebutted and destroyed the presumption arising from the mere fact that it did fall. As there was no evidence to sustain the claim of the plaintiff that the defendant was guilty of negligence in respect to the falling of the wire and the presumption of negligence arising therefrom had been destroyed, it was prejudicial error for the court to charge the doctrine of res ipsa loquitur, and it was also prejudicial error to submit the issue of negligence of the defendant in that respect to the jury."

The judgment was therefore reversed, and the cause remanded for new trial. The cause has been admitted to this court upon allowance of the motion to certify the record.

Messrs. Gordon & Gordon, and Messrs. Graves & Duff, for plaintiff in error.

Messrs. True, Crawford & True, for defendant in error.

MARSHALL C. J.

The allegations of the petition and the admissions in the answer were such as to raise an issue upon the subject of res ipsa loquitur, and the evidence offered by plaintiff, meager as it was, was such as to require the defendant to go forward with an explanation of the cause of the severance of the wire. Defendant's counsel evidently appreciated this situation because, upon the overruling of the motion for a directed verdict at the close of plaintiff's testimony, the defendant proceeded to call witnesses. The motion for directed verdict having been overruled, and the defense having introduced evidence for the purpose of explaining the severance of the wire, consistency on the part of the trial court required a charge on the subject of res ipsa loquitur, unless the evidence of the defendant by way of explanation was so direct and conclusive as to the cause of severance as to leave no question of fact upon the subject of the cause of the severance for the jury to...