Mackey v. O'Neal

• Decision Date: 09 November 1953
• Citation: 101 A.2d 337,48 Del. 233,9 Terry 233
• Parties: , 48 Del. 233 MACKEY et al. v. O'NEAL et al.
• Court: Delaware Superior Court

Page 337

101 A.2d 337

9 Terry 233, 48 Del. 233

MACKEY et al. v. O'NEAL et al.

Superior Court of Delaware, New Castle County.

Nov. 9, 1953.

Clement C. Wood, of Young & Wood, Wilmington, for plaintiffs.

William H. Bennethum, Wilmington, for defendants.

LAYTON, Judge.

The second count of the complaint is obviously based upon the doctrine of res ipsa loquitur. It asserts that the plaintiff, Margaret Mackey, was a passenger for hire on defendants' bus on March 20, 1952, and that about seven o'clock P.M. of that day, on Route 40, Maryland, defendants' bus made a sudden stop, propelling plaintiff from her seat, whereby she was seriously injured, and that her injuries were due to defendants' negligence, the exact nature of which is unknown.

Neither party disputes the proposition that in a case such as this, it is the lex loci, not the lex fori, which governs. Lachman v. Pennsylvania Greyhound Lines, 4 Cir., 160 F.2d 496; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663.

Defendants' motion is based upon two grounds. The first is that the doctrine of res ipsa loquitur will not be applied in Maryland unless the agency causing the injury was under defendants' exclusive management and control, and that since this was an accident involving a third vehicle, obviously not under defendants' control, the count is defective and must be dismissed. It is the law of Maryland that the doctrine of res ipsa loquitur is not applicable in cases where the injury might have been caused either by defendant's negligence or by the sole negligence of some third party, for which defendant was in no wise responsible. Klan v. Security Motors, 164 Md. 198, 164 A. 235, 236. But defendant, at this point, is in no position to urge this proposition. The complaint before me merely recites that plaintiff was thrown from her seat by a sudden stop. Nowhere in the complaint, or in the subsequent amendments thereto, does it appear that some third party was even involved, let alone the sole contributing cause of the injury sustained. Now, at the trial of this case, it may be that, as in the Klan case, plaintiff herself will be forced to show circumstances indicating that the sudden stop which caused her injury was the result of the negligent operation of some other vehicle. In such event, defendant could move for judgment on the count under discussion at the end of plaintiff's case. Otherwise, defendant might be forced to offer exculpatory evidence.

However that may be, while defendant is correct in its appraisal of the Maryland law on this subject, it is obviously premature in making this argument. In this respect, the motion is denied.

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