Potts v. Armour & Co.

• Court: Maryland Supreme Court
• Writing for the Court: DELAPLAINE, Judge.
• Citation: Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552 (Md. 1944)
• Decision Date: 26 October 1944
• Docket Number: 1.
• Parties: POTTS v. ARMOUR & CO.

39 A.2d 552

183 Md. 483

POTTS v. ARMOUR & CO.

No. 1.

Court of Appeals of Maryland

October 26, 1944

Appeal from Superior Court of Baltimore City; J. Abner Saylor Judge.

Action by Isaac Potts against Armour & Company for personal injuries sustained by plaintiff when he was struck by an iron meat-hook while on loading platform of defendant's plant. Verdict and judgment for defendant, and plaintiff appeals.

Judgment affirmed.

Leo M Alpert, of Baltimore (Makover & Kartman, of Baltimore, on the brief), for appellant.

S Ralph Warnken, of Baltimore (Cook & Markell, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

DELAPLAINE Judge.

Isaac Potts, a retail grocer, 46 years old, brought this suit against Armour & Company to recover for personal injuries sustained when he was struck by an iron meathook while on the loading platform of defendant's building at the Union Stock Yard in Baltimore.

The accident occurred on the morning of January 19, 1943, when plaintiff, after ordering meat in defendant's office, was walking toward the cooler, where he intended to select the meat. He had a space about three and a half feet wide in which to walk between the wall and the meat-hooks hanging from trolley-blocks on an overhead trolley-rail. It has been the custom at the plant, after meat is rolled from the cooler and taken from the trolley-blocks, to let the hooks hang on the trolley-blocks until they are pushed back into the cooler. Although plaintiff saw the hooks, some of which were five feet long, a prong of one of the hooks struck his head above the left eye. He is appealing from the judgment entered upon the verdict of the jury in favor of defendant.

Plaintiff contends that, even though he did not prove any specific act of negligence, he established a prima facie case of negligence under the rule of res ipsa loquitur, and that the court erred in refusing to instruct the jury that the burden was shifted to defendant to prove it was not guilty of negligence. It is an elementary rule that the plaintiff in an action for damages for injuries alleged to have been caused by negligence has the burden of proving affirmatively the alleged negligence by a preponderance of the evidence. Moore v. American Stores Co., 169 Md. 541, 549, 182 A. 436. Res ipsa loquitur was defined by Justice Holmes as 'a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case.' Graham v. Badger, 164 Mass. 42, 41 N.E. 61. The presumption raised by the rule of res ipsa loquitur is one of evidence and not of substance, and application of the rule does not shift the burden of proof, but simply shifts the burden of going forward with the evidence. When the rule is applied, the burden of proof remains upon the plaintiff during the trial.

When all the evidence is in, the question for the jury to decide is whether the plaintiff has met the obligation to prove negligence by a preponderance of the evidence. Potomac Edison Co. v. Johnson, 160 Md. 33, 39, 152 A. 633; Wilson v. Colonial Air Transport, 278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329, 332; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952; Ireland v. Marsden, 108 Cal.App. 632, 291 P. 912. Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.1914D, 905.

The law is established that the proprietor of a store or other business establishment is not an insurer of the safety of his customers, but has the duty to exercise ordinary care to maintain the premises in a reasonably safe condition to prevent injuries to his customers. S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; J. C. Penny Co. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 705. It is also well settled that the owner of a building may be held liable for injuries resulting from the fall of an object from the building, unless he can show that he was not at fault. Pindell v. Rubenstein, 139 Md. 567, 115 A. 859. Likewise, a customer may invoke the doctrine of res ipsa loquitur in an action for injury caused by a falling object in a store, if the fall is, according to common experience, so unusual in occurrence when due care is exercised as to carry inherent probability of negligence on the part of the defendant. Higgins v. Goerke-Krich Co., 91 N.J.L. 464, 103 A. 37; Klitzke v. Webb, 120 Wis. 254, 97 N.W. 901. For instance, a customer, injured in a store by a fall of a carrier basket from the track of a carrier system, may establish a prima facie case of negligence against the storekeeper by invoking the doctrine of res ipsa loquitur. Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 P. 325, 16 L.R.A.,N.S., 931, 126 Am.St.Rep. 870. The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case. McClellan v. Schwartz, 97 Wash. 417, 166 P. 783. The rule does not apply where it can be inferred from ordinary experience that the accident might have happened without the fault of the defendant. The accident must have happened irrespective of any voluntary action at the time by the party injured. Frenkil v. Johnson, 175 Md. 592, 3 A.2d 479; Greeley v. Baltimore Transit Co., 180 Md. 10, 22 A.2d 460; 9 Wigmore on Evidence, 3d Ed. § 2509. Otherwise, a person claiming to have been injured as the result of negligence could invoke the rule and use the fact of the happening of the accident as evidence of negligence, even though the jury considers his story incredible. We specifically hold that where an injury has been caused by an apparatus in the control of the defendant and of such a character that ordinarily the injury would not have been inflicted if the defendant had exercised reasonable care in its construction, inspection and use, a presumption arises, in the absence of an explanation which the jury accepts, that the injury would not have been inflicted if the defendant had exercised reasonable care. J. C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Wilson v. Colonial Air Transport, 278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329. If the trial court finds that conflicting inferences may be drawn, choice of inference must be made by the jury. George Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455.

In the case at bar the court was faced with the issue whether the meat-hook dropped from the trolley-block or was accidentally hit by plaintiff and knocked off the trolley-block. Plaintiff objects to the court's instruction that if the jury believes the meat-hook fell without negligence on the part of plaintiff, the fall was prima facie evidence of defendant's negligence, and the verdict must be for plaintiff unless they find by a preponderance of affirmative evidence that plaintiff was guilty of want of ordinary care which contributed to his injury; but if the jury believes that plaintiff was the sole or contributing cause of the accident, then the verdict must be for defendant. We find no reversible error in this instruction. It is elementary that the burden of establishing the plaintiff's contributory negligence rests upon the defendant. Potomac Edison Co. v. State, to Use of Hoffman, 168 Md. 156, 177 A. 163; 1 Poe, Pleading and Practice, § 460; Ashman, Directed Verdicts and Instructions § 33. If the plaintiff makes out a prima facie case, the defendant, if he relies upon the plaintiff's contributory negligence, must prove it. However, as the American Law Institute has stated, this does not necessarily mean that the defendant must produce evidence to this effect. The...