Manker v. Shaffer
| Decision Date | 10 April 1953 |
| Citation | 96 Ohio App. 350,121 N.E.2d 908 |
| Parties | , 54 O.O. 351 MANKER, Appellant, v. SHAFFER, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. The pleading of specific acts of negligence does not prevent the application of the rule of res ipsa loquitur in a proper case.
2. The rule of res loquitur 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 is under the exclusive management and control of the party sought to be charged, and an accident occurs under such circumstances that in the ordinary course of events it would not have occurred had ordinary care been observed.
3. The rule of res ipsa loquitur has application in an action for damages growing out of an automobile accident brought by a paying occupant against the operator of the automobile where the plaintiff's evidence discloses that the automobile was carrying eight occupants in addition to plaintiff and the operator; that it was being operated early in the morning at a speed between 40 and 50 miles per hour while it was raining; and that it swerved, left the road which was wet, travelled some distance in a ditch and collided with a tree, thus causing injury to plaintiff.
4. In such an action, the inference of negligence which the jury is permitted to draw under the rule of res ipsa loquitur is not, as a matter of law, rebutted by testimony given by defendant when called by plaintiff to testify as if under cross-examination that the automobile slipped or swerved when passing over a broken or slippery spot in the road. Under such circumstances, plaintiff is entitled to have the case submitted to the jury, and it is reversible error for the court to direct a verdict for defendant at the close of plaintiff's case.
5. In ruling on defendant's motion for directed verdict at the close of plaintiff's case, the court is required to construe the evidence in a manner most favorable to the plaintiff.
Harrison, Spangenberg & Hull, Cleveland, Herbert M. Eikenbary, Dayton, for appellant.
Matthews & Altick, Dayton, for appellee.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County.
Plaintiff, appellant herein, while riding in an automobile driven by defendant, suffered injuries when the automobile left the road and collided with a tree. There is evidence supporting the claim that plaintiff and other occupants of the automobile were on the way to work, and that the defendant received compensation from the plaintiff for such transportation. At the close of plaintiff's case, the court directed a verdict for the defendant.
Plaintiff assigns as error, the directing of the verdict for defendant; that the verdict is contrary to law; that the verdict is against the manifest weight of the evidence; and that there are other errors appearing upon the record. The weight of the evidence is not involved, and other errors apparent upon the record are not discussed in the briefs. Therefore, the sole error for our consideration is whether the court should have directed a verdict for the defendant.
The trial court held that the evidence did not show negligence on the part of the defendant, and that reasonable minds could not differ on the proposition that there is no evidence from which an inference could be drawn that defendant was negligent. The plaintiff contends that the doctrine of res ipsa loquitur applies, and that in the application of the doctrine, the case should have been submitted to the jury.
The plaintiff is his amended petition made four specific allegations of negligence, as follows:
'Plaintiff says that at the time herein referred to the defendant was negligent in the following respects '(1) In so directing the course of said automobile as to cause it to leave said highway.
'(2) In failing to keep said automobile under control.
'(3) In operating said automobile at a rate of speed greater than was reasonable and proper under all of the circumstances then and there existing, to wit: 50 miles per hour.
'(4) In so directing the course of said automobile as to cause it to run off said road and against a tree alongside said road.'
There is one allegation in the amended petition which may be construed as a general allegation of negligence.
Some evidence was presented in support of the specific...
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Hartford Fire Ins. Co. v. Henry J. Spieker Co.
...Amusement Co., Ohio App., 90 N.E.2d 585; Motorists Mutual Ins. Co. v. Calland, 93 Ohio App. 543, 114 N.E.2d 162; Manker v. Shaffer, 96 Ohio App. 350, 121 N.E.2d 908; Rigney v. Cincinnati St. Ry. Co., 99 Ohio App. 105, 131 N.E.2d 413, 52 A.L.R.2d 1443. Contra: Shadwick v. Hills, 79 Ohio App.......
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Rigney v. Cincinnati St. Ry. Co.
...the court affirmed the judgment for the plaintiff by recourse to the doctrine of res ipsa loquitur. See, also, Manker v. Shaffer, 96 Ohio App. 350, 121 N.E.2d 908, in which the doctrine of res ipsa loquitur was applied notwithstanding the fact that specific acts of negligence were So we con......