Heyduck v. Elder & Johnston Co.

• Decision Date: 10 March 1962
• Citation: 187 N.E.2d 615,116 Ohio App. 224,97 A.L.R.2d 1422
• Parties: , 97 A.L.R.2d 1422, 22 O.O.2d 61 HEYDUCK, Appellee. v. The ELDER & JOHNSTON COMPANY, Appellant.
• Court: Ohio Court of Appeals

Page 224

116 Ohio App. 224

187 N.E.2d 615, 97 A.L.R.2d 1422, 22 O.O.2d 61

HEYDUCK, Appellee. v. The ELDER & JOHNSTON COMPANY, Appellant.

Court of Appeals of Ohio, Second District, Montgomery County.

March 10, 1962.

P. Eugene Smith, Dayton, for appellant.

Elton S. Gallon and Joseph B. Miller, Dayton, for appellee. SHERER, Judge.

This is an appeal on questions of law from a judgment rendered by the Common Pleas Court of Montgomery County on a verdict returned by a jury in favor of the plaintiff, appellee herein and hereinafter referred to as plaintiff.

Defendant, appellant herein and hereinafter called defendant, contends that the court erred to the prejudice of defendant, as follows:

1. No evidence supported plaintiff's allegations of negligence against defendant, by reason whereof the trial court should have sustained appellant's motions to direct a verdict for the defendant at the close of plaintiff's case and again at the end of the introduction of all the evidence.

2. The verdict of the jury and the judgment rendered thereon are contrary to law for lack of any evidence connecting defendant with the event as to which plaintiff complains.

3. The trial court erred by failing to sustain appellant's motion for judgment non obstante veredicto.

Where a defendant, at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiff is entitled to have the evidence construed most strongly in his favor. Where, on the trial of a cause, substantial evidence has been introduced from which it might reasonably be concluded that defendant was guilty of negligence which was the proximate cause of plaintiff's injury, the court may not sustain defendant's motion for a directed verdict. The test is not whether the trial judge would set aside a verdict in favor of plaintiff on the weight of the evidence. Where there is no defect in the statements contained in plaintiff's pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff's injury, a motion non obstante veredicto attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such a motion. Wilkeson, Admr., v. Erskine & Son, Inc., 145 Ohio St. 218, 61 N.E.2d 201.

At page 228, 61 N.E.2d at page 206, Turner, J., writing the opinion for the court, quoted from 39 Ohio Jurisprudence, 803, Section 183: "In other words, the evidence must be construed favorably to the submission of the case to the jury, and the trial judge should indulge in every possible consideration in favor of such submission."

In construing the evidence in this case most strongly in favor of plaintiff, the jury could have found these probative facts from the evidence offered by plaintiff: That plaintiff was standing in an alley running east and west when he was struck on the top of the head to the back by a package in a cellophane wrapper containing a new mattress cover; that at the time he was struck he was facing north talking to another truck driver; that the main store used and occupied by the defendant is located on the north side of the alley; that the Hollencamp building and the Hagerman building abut the alley to the south; that there are openings between the Hollencamp and Hagerman buildings which permit traffic to flow freely between them; that the main store and the other two buildings are connected by an overpass by which one can pass back and forth from the main store on the north to the other two buildings from the third, fourth and fifth floors; that the Hagerman building is located west of the overpass and the Hollencamp building is to the east of the Hagerman building and east of the overpass; that there are windows on the alley side of defendant's main store east of the overpass; that there are no such windows west of the overpass on the south side of the main store; that there is a small window on the alley side of the Keith building which is west of the main store; that the Hollencamp and Hagerman buildings abutting on the south side of the alley are used and occupied by defendant for a warehouse; that defendant receives merchandise in the Hagerman building which is west of the overpass on the south side of the alley; that there are seven floors in the Hagerman building; that the receiving department and garage are located on the first floor; that the second floor is used as a stockroom; that the third floor is used to mark merchandise; that the fourth floor is used for a fur vault and to store cash registers; that the fifth floor is a stockroom; that the sixth floor is a marking and stockroom; that all of the floors in this building have windows overlooking the alley; that there were shelves on the wall next to the alley near the windows on the sixth floor on which were stored blankets, sheets, pillow cases, mattress covers, quilts and other articles having to do with bedding or linens; that in addition to those employed by defendant in the warehouse, other persons come there, such as employees of defendant from the main store across the alley, sometimes with customers to look at merchandise, persons who come after boxes to use in moving, salesmen who check the stock to determine whether the quantity is sufficient; that at the time plaintiff was struck by the mattress cover he was standing in the alley facing north at a point directly opposite the door leading into the Hagerman building back of him to the south and below the windows of that building on the upper floors; that immediately after he was struck several people were looking down upon the alley from open windows in the Hagerman building, one boy in a white T shirt from the sixth floor and the others from the fifth floor; that after plaintiff was struck by the package two boys ran out from the Hagerman building, retrieved the package and went back into that building; that after plaintiff was struck an employee of defendant employed as shipping clerk on the first floor of the Hagerman building came into the alley because someone had told him something; that this employee told plaintiff that if he felt he had been hurt he should report to defendant's nurse in the first-aid department; that a receiving clerk employed by defendant was standing in the doorway of the Hagerman building back of plaintiff and saw the package fall and strike plaintiff; that this employee, plaintiff and the other truck driver were the only persons in or near the alley at the time and place of the accident; that it is not the usual thing for a customer, sales person or any person other than employees of defendant to be on the sixth floor of the Hagerman building; and that the mattress cover which struck plaintiff looks similar to mattress covers sold by the defendant.

Upon this evidence, the Common Pleas Court overruled defendant's motions to direct a verdict, applied the doctrine of res ipsa loquitur and so charged the jury. Defendant contends that the facts do not warrant the application of this doctrine, and plaintiff concedes in argument that the judgment must fail if the doctrine is not applicable.

A definition of the doctrine is found in paragraph two of the syllabus in Fink v. New York Central R. Co., 144 Ohio. St. 1, 56 N.E.2d 456, which reads:

'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. * * *'

In the case of Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167, the Supreme Court reviewed the cases in which the doctrine had been applied and denied and held, in paragraph one of the syllabus:

'The doctrine of res ipsa loquitur may be applicable where (a) the instrumentality causing the injury was under the exclusive management and control of the defendant and (b) 'the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.' Fink v. N. Y. Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456, approved and followed.'

The court said, at page 510, 87 N.E.2d at page 171:

'Generally, the amount of care required to constitute ordinary care, is commensurate with the danger involved. Thus, under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous, because prudent and careful persons, having in view the object to be attained and the just rights of others, are, in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case. * * *'

And, at page 511 therein, 87 N.E.2d at page 171, the court said further:

'Our conclusion, therefore, is that, in determining whether 'the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed' so that the doctrine of res ipsa loquitur could be applied, the trial court should consider whether the circumstances are such as to indicate that ordinary care would require a high degree or great amount of care on the part of the defendant.

'Only in such a situation can it be said, in the absence of any evidence of negligence, that the accident was more probably the result of a negligent than of some other cause. In effect, before applying the doctrine of res ipsa loquitur, the court must be warranted in taking judicial notice of the fact that the accident does not happen in the ordinary course of events unless there...