Marsigli v. C. W. Averill Co.
| Decision Date | 07 November 1962 |
| Docket Number | No. 1923,1923 |
| Parties | Olga MARSIGLI v. C. W. AVERILL CO., Inc. |
| Court | Vermont Supreme Court |
Monti, Calhoun, Eldredge & Free, Barre, for plaintiff.
Edmunds, Austin & Wick, Burlington, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
During trial the plaintiff conceded that her case would fail unless the doctrine of res ipsa loquitur was applicable. The jury returned a verdict for the defendant and the plaintiff is here asserting error in the charge of the court. The defendant takes the position that the result reached by the jury ought not to be disturbed because its motion for a directed verdict ought to have been granted in any event. It says that res ipsa loquitur does not apply here.
At a time when plaintiff was shopping in a hardware store then operated by the defendant, she approached a counter where merchandise was on display and stood near it looking for a cake pan. As she stood there, two substantial breadboards fell on the instep of her left foot inflicting the injuries for which she seeks compensation. These boards appear to have been stored in some manner on open shelves below the level of the top of the counter. The top of the counter projected out beyond the lower portion so that these shelves were not visible from above. Other than to testify that she was not in contact with the counter, did not reach under the counter or disturb the underneath portion of the counter, the plaintiff offered no explanation of the episode. She made no attempt to establish, independent of the accident, that the breadboards were negligently piled or stored and that defendant knew or ought to have known that a dangerous situation was thereby created. The store premises and the merchandise therein were acknowledged to be operated by and under the control and supervision of the defendant.
The doctrine of res ipsa loquitur is a recognition that there is a certain class of events which, when established, raise an inference that injury caused thereby was the result of negligence. McDonnell v. Montgomery Ward, 121 Vt. 221, 226, 154 A.2d 469, 80 A.L.R.2d 590. In such a case, proof of the event is sufficient for the plaintiff to avoid a directed verdict in favor of the defendant, unless the evidence introduced by the defendant so conclusively refutes the charge of negligence that, notwithstanding the doctrine, opposing inferences could not reasonably be drawn and only a question of law was presented. Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 423, 139 A. 440, 56 A.L.R. 1011.
The test for the application of the doctrine of res ipsa loquitur has been set out in McDonnell v. Montgomery Ward, supra, 121 Vt. 226-227, 154 A.2d 469; there it is stated that the evidence must show:
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