May v. Columbian Rope Co.

• Decision Date: 14 March 1963
• Docket Number: Gen. No. 48548
• Citation: 189 N.E.2d 394,40 Ill.App.2d 264
• Parties: Roman J. MAY, Appellant, v. COLUMBIAN ROPE COMPANY, Appellee.
• Court: United States Appellate Court of Illinois

Page 394

189 N.E.2d 394

40 Ill.App.2d 264

Roman J. MAY, Appellant, v. COLUMBIAN ROPE COMPANY, Appellee.

Gen. No. 48548.

Appellate Court of Illinois, First District, Second Division.

March 14, 1963.

Joseph Bardera, Chicago, John W. Schelthoff, Charles D. Snewind, Chicago, of counsel, for appellant.

Berchem, Schwantes & Thuma, Chicago, Michael J. Thuma, Richard Owen Young, Chicago, of counsel, for appellee.

FRIEND, Justice.

Plaintiff brought suit against Columbian Rope Company, and Leonard and Maude E. Dietz, doing business as Dietz Industrial Company, for personal injuries alleged to have been sustained by him when a rope, manufactured by Columbian and sold by Dietz, broke while being used to move a wooden beam in a building under construction in Morton Grove, Illinois. At the close of plaintiff's case the court allowed the motion of the Dietzes for a directed verdict in their favor, and the jury found them not guilty. At the conclusion of the trial the jury found Columbian guilty and assessed plaintiff's damages in the sum of $45,000. Subsequently defendant's motion for judgment notwithstanding the verdict was allowed. The court also granted defendant's motion for a new trial, the order being conditioned upon subsequent reversal of the judgment notwithstanding the verdict.

The accident occurred on June 26, 1953 at about nine o'clock in the morning. Plaintiff and other workmen employed by the contractor Chappeal were engaged in fastening corrugated metal sheets over a row shaped framework. A portable scaffold was used in this process. As plaintiff and the others were moving this scaffold and its related beams to another position, a rope attached to one of these beams broke, causing plaintiff to fall to the ground.

The rope which broke is a one-half inch, three strand Manila line, manufactured by defendant. Plaintiff's amended complaint alleges in substance that defendant manufactured the rope for sale for use in construction work; that it was defendant's duty to exercise reasonable care in the manufacture, inspection, and delivery of the rope so that it was of serviceable quality and not defective or otherwise dangerous or unreasonably prone to break in the course of its normal and intended use; and that notwithstanding said duty defendant negligently manufactured the rope in question, as a proximate result of which plaintiff was injured when the rope broke. No issue is raised as to the sufficiency of the pleadings.

Plaintiff produced evidence that defendant recommended this type of rope for use as elevator rope, hoist rope, safety rope, general purpose rope, and as suitable for industrial use. Defendant adduced extensive proof as to its manufacturing processes, arguing from this evidence that the testing and safety procedures employed showed it to be in the exercise of all due care in the manufacture of its product.

Plaintiff offered no evidence of a manufacturing defect in the rope. His case is entirely circumstantial. He testified that the rope was 'brand new,' having been placed in use on the morning of the accident. He denies that the truss from which the rope was suspended was sharp, or likely to have cut the rope and caused his fall. He stated, without contradiction, that the rope broke while lifting a weight of seventy-five or one hundred pounds, although its advertised breaking strength was twenty-six hundred fifty pounds. His counsel then argued to the jury, as he does here, that negligence in the manufacture of the rope might be inferred from the fact that when 'brand new' it broke while holding less than one twenty-fifth of its rated capacity.

Plaintiff's testimony as to the age of the rope was corroborated by his fellow workman, Dale Waterloo, whose deposition, read into evidence, stated variously that:

'[it was] fairly new rope. I don't believe they brought any new rope on the job before the accident.

* * *

* * *

'We got some new rope on the morning of the accident. I am sure that the rope that broke was the rope that came that morning. * * *'

In all fairness to this deponent, it should be stated that he freely admitted that an illness had left him with an impaired memory and capacity for narration, and that he was 'hazy' about events which happened so long ago.

Although plaintiff's case rests on circumstantial evidence, defendant's argument in support of the judgment notwithstanding the verdict correctly assumes that it is based upon that kind of circumstantial evidence which is embraced within the doctrine of res ipsa loquitur. In Cobb v. Marshall Field & Co., 22 Ill.App.2d 143, 155, 159 N.E.2d 520, 525 (1959), the court said:

'In a res ipsa loquitur case there is an inference of negligence arising from circumstantial evidence. Although this is often called a 'presumption' it is in reality a presumption of fact and not of law. Such an inference, or presumption, does not disappear when contrary evidence appears; it remains to be considered with all the other evidence in the case and must be weighed by the jury. Prosser, 20 Minn.L.Rev. 241; Feldman v. Chicago Rys. [Co.], 289 Ill. 25, 124 N.E. 334, 6 A.L.R. 1291. * * *' (Emphasis added.)

We regard the above quotation as correctly expressing the rule that res ipsa loquitur presents one aspect of circumstantial evidence, and that the two terms are not mutually exclusive. By arguing from his evidence that the breaking of the rope 'speaks for itself,' i. e., is evidence of defendant's negligence, plaintiff brings his case well within the doctrine of res ipsa loquitur and all the rules of law which apply thereto. A contrary conclusion would require that nomenclature be exalted at the expense of substance.

Defendant cites authority to support its contention that it is entitled to judgment as a matter of law because, under the res ipsa loquitur inference, plaintiff failed to show that defendant, and not plaintiff, was in control of the harmful instrumentality at the time of the injury. Decisions from other states and recent cases here reject this inflexible application of a rule of control and hold that a defendant in a res ipsa loquitur case cannot automatically defeat an allegation of negligence with a bare showing that, before harm struck, it had parted with control of the harmful instrumentality. (Prosser, Torts 206 (2d ed. 1955).)

The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant's negligence is strong enough to survive the fact that, between the defendant's control and the plaintiff's injury, another possession intervened. If a reasonable inference of negligence does survive, liability has been imposed.

Thus, Roper v. Dad's Root Beer Co., 336 Ill.App. 91, 82 N.E.2d 815 (1948), indicates that, on a sufficient showing, liability for the explosion of a bottle in the plaintiff's possession and control might be traced to the defendant bottler, since it was in control of the bottle at the time of the alleged negligence. Duval v. Coca-Cola Bottling Co., 329 Ill.App. 290, 68 N.E.2d 479 (1946), was an action for personal injuries in which the plaintiff claimed to have observed a dead mouse upon drinking Coca-Cola bottled by the defendant, from which he became ill. Defendant argued that its motion for judgment notwithstanding the verdict should have been granted because it was shown not to have been in possession or control of the Coca-Cola bottle at the time of the plaintiff's injury. The court applied the doctrine of res ipsa loquitur and affirmed the verdict and judgment, answering defendant's loss of control argument by saying (p. 293, 68 N.E.2d p. 481): 'We cannot take seriously any suggestion that the mouse have entered or been placed in the bottle while in the garage of the salesman.' More recently, in Harris v. Coca-Cola Bottling Co., 35 Ill.App.2d 400, 183 N.E.2d 56 (1962), a consumer was permitted recovery against the bottler of a beverage containing a mouse, on facts similar to those of the Duval case. Again, in Johnson v. Stevens Bldg. Catering Co., 323 Ill.App. 212, 55 N.E.2d 550 (1944), res ipsa loquitur was successfully invoked when a teapot broke apart in plaintiff's hands after it was passed to her by defendant's waitress. The court reasoned that the inference of defendant's negligence in preparing the pot of tea survived the intervening 'momentary possession' of the plaintiff.

On the other hand, if the intervening possession and control (whether that of the plaintiff or another) is of a kind which 'spoils' the inference of defendant's negligence, res ipsa loquitur inferences may not be indulged by the plaintiff. In Miszczak v. Maytag Chicago Co., 11 Ill.App.2d 496, 138 N.E.2d 52 (1956), plaintiff was injured when the tension release bar of her washing machine failed to operate. The stipulated facts showed that the machine had operated perfectly for a two year period prior to the accident. The court concluded that this intervening period of trouble free use destroyed any inference of negligence in the manufacture of the machine. Similarly, Brooks v. Hill-Shaw Co., 117 F.2d 682 (7th Cir. 1941), held that res ipsa loquitur did not apply to the explosion of a coffee maker manufactured by defendant, plaintiff admitting that she had used the coffee maker two or three hundred times before the accident, with no difficulty. The court held that this admitted evidence of intervening safe use rendered unreasonable any inference that the coffee maker was defective when it left defendant's assembly line.

In line with the thrust of the above cases, we conclude that the admitted intervening possession of plaintiff (and of the retailer to whom defendant sold the rope) does not, on the facts before us, render unreasonable plaintiff's inference that the rope was negligently manufactured, given his evidence as to its newness and the circumstances of its breaking.

Defendant asserts that plaintiff...