Schiesel v. S. Z. Poli Realty Co.
| Decision Date | 16 July 1928 |
| Citation | 142 A. 812,108 Conn. 115 |
| Court | Connecticut Supreme Court |
| Parties | SCHIESEL v. S. Z. POLI REALTY CO. |
Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.
Action by Nathan Schiesel against the S. Z. Poli Realty Company to recover damages for the alleged negligence of defendant brought to the Superior Court in New Haven County and tried to the jury before Nickerson, J. Verdict and judgment for defendant, and plaintiff appeals. Error, and a new trial ordered.
George E. Beers, of New Haven, and Irving G. Smith, of Meriden, for appellant.
Benjamin Slade and Louis Weinstein, both of New Haven, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
The case was tried to the jury. The plaintiff offered evidence to prove: That he, from October, 1923, to October, 1925, conducted a business in women's and children's clothing in a store adjoining the defendant's theater and separated from it upon its easterly side by a brick wall which was the westerly side of the lobby of the theater. During plaintiff's occupancy of this store for a year and up to October 1, 1924, no steam or water escaped into his store causing damage to his stock of goods. The store was heated by an ordinary coal stove and a gas heater, upon which he kept a small vessel containing water.
The defendant heated its premises by steam through pipes connected with a boiler in its cellar. One of these pipes ran from a boiler 250 feet from the line of the plaintiff's store to a radiator recessed about 8 inches in the wall between plaintiff's store and defendant's premises and being about 50 feet from the front of each.
In the summer of 1924, the defendant changed its method of generating steam from coal to oil by attaching to the boiler suitable apparatus.
In November, 1924, for the first time, dampness, moisture, and water appeared in the premises of the plaintiff through the passage of the moisture and water from the premises of the defendant through this wall.
The plaintiff made frequent complaints to the defendant of this. The steam oozed through the wall to a point opposite the recessed radiator, condensed on the wall of the store, and in consequence through the defendant's negligence the steam and water injured the fabrics in the store.
The defendant offered evidence to prove: The wall between the radiator in defendant's lobby and the face of the wall in plaintiff's store was between 12 and 16 inches thick. Upon the first complaint of the plaintiff an immediate examination was made of the theater apparatus and especially of the radiator, and no steam was seen escaping from it, but the defendant immediately shut off the supply into the steam pipes feeding the radiator and kept it continuously shut off during the winter seasons of 1924 and 1925, and up to the date of this action April 20, 1925.
About March, 1925, plaintiff again claimed that dampness in the store was caused by escaping steam; an immediate, thorough, and complete inspection and examination was again made, and the wood wainscoting removed in plaintiff's store opposite the location of the radiator, and thereby the brick wall was exposed at the place where the wainscoting was removed and found to be perfectly dry and no steam was found escaping from the theater or through the wall or otherwise into plaintiff's store. There was at no time any sign in the lobby of the theater of any escaping steam from this radiator, which was at all times visible from the lobby through a perforated grill covering it. It was impossible for steam to enter plaintiff's store, as it would have to pass through this brick wall. If any steam did escape it would first be visible through the grill and in the theater lobby.
In plaintiff's store near the place where he claimed steam entered his store there was a large mirror which at no time disclosed a vapor covering or dampness, and at no time were there any signs on the floor or walls of the store of the entry of any steam from this radiator.
During the winter months of 1924, over 4,400 cubic feet of gas was consumed per month in plaintiff's gas heater and about the same quantity during the season of 1925. At the time of the first complaint by the plaintiff a careful and exhaustive examination of this store was made by the defendant, which disclosed water beads on the metal ceiling and walls of the store, but no steam was found escaping into the plaintiff's premises. For every 500 cubic feet of gas burned in the plaintiff's gas heater, which had no chimney, there was created 15 quarts of water, which was evidenced by water beads on the metal ceiling and walls of the plaintiff's store, and this was not due to any act of omission or commission on the part of the defendant.
The plaintiff requested the court to charge:
" If you find that the steam came through the wall from the premises of the defendant, you may from the fact draw the inference that the defendant was negligent," etc.
The plaintiff invoked in this request the doctrine of res ipsa loquitur, and claimed in argument that because of its applicability he had made out a prima facie case and that the burden of meeting and disproving this was thereby cast upon the defendant, but that the court, throughout the charge, ignored this doctrine and instructed the jury that the plaintiff was bound to prove the material allegations of his complaint.
Experience has demonstrated that when certain facts are proven ordinarily a certain inference follows, and that in the absence of their explanation or rebuttal, reliance may be placed upon the probative strength of the inference, and from it a presumption of law, attaching to it certain legal consequences, will arise. The presumption is neither the fact nor the inference, but, as Thayer says, " the legal consequences of it." It is not of itself evidence. It merely calls for evidence in explanation or rebuttal of the inference upon which the presumption rests. The presumption stands or falls with the inference. If no explanation or rebuttal is forthcoming the inference remains and the presumption obtains. But if either is made, and in a degree satisfying the court's requirement, the inference is met, the presumption no longer exists, and the decision must rest upon the evidence, free from the effect of the presumption. In the first instance the plaintiff satisfies the burden of proving the essentials of his case by proof out of which the inference springs and upon which the presumption of law arises. It casts upon the defendant the duty of explaining or rebutting the inference. When the defendant has made this proof the plaintiff must satisfy the burden of proof upon him by evidence.
In a negligence action, occasionally, the proof of the occurrence of the injury will justify the inference that it could not in the general experience have happened unless there had been a want of due care. Out of this inference of fact grows a presumption of law that the injuring party will be held responsible in damages for the consequences of this occurrence unless he shall explain or rebut this inference by evidence which meets the requirement of the court. The proof of facts creating the inference and raising the presumption acts upon the party charged the duty of producing such evidence of explanation or rebuttal.
When he has done this the plaintiff may introduce evidence in rebuttal of defendant's explanation or rebuttal. The burden of proof rests throughout the case upon the plaintiff. He may meet it by proof of facts giving rise to the inference creating the presumption of law. When the defendant has overcome this inference by proof in explanation or rebuttal the...
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