Smith v. Coca Cola Bottling Co.
| Decision Date | 02 December 1952 |
| Citation | 97 N.H. 522,92 A.2d 658 |
| Parties | SMITH v. COCA COLA BOTTLING CO. |
| Court | New Hampshire Supreme Court |
Frederick W. Harrington, Jr., Plymouth, and Francis P. Edes, Newport, for the plaintiff.
Nighswander & Lord and Hugh H. Bownes, Laconia, for the defendant.
The conditions usually stated as necessary for the application of the principle of res ipsa loquitur are: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution in the part of the plaintiff. Prosser on Torts, p. 293. See Foss v. Baker, 62 N.H. 247, 249; Boucher v. Boston & M. Railroad, 76 N.H. 91, 95, 79 A. 993, 34 L.R.A.,N.S., 728; McCourt v. Travers, 87 N.H. 185, 186, 175 A. 865; Annotation 4 A.L.R.2d 466, 467.
This doctrine does not do away with the well established rules of law that a person asserting negligence has the burden of proof and that the mere fact of injury does not indicate negligence on the part of anyone. It is merely a rule of evidence relating to the mode of proof and not a substantive rule of law. Worster v. Caylor, Ind.App., 106 N.E.2d 108, 112. It is nothing more than a case of circumstantial evidence where plaintiff has proved enough to 'get to the jury.' United States v. Hull, 1 Cir., 195 F.2d 64. See Anno. 167 A.L.R. 658, 659. In other words when the doctrine applies proof of the circumstances attending the accident is sufficient to justify the submission of the question of defendant's negligence to the jury and to warrant, but not compel, a finding by them of negligence on the part of the defendant. Boucher v. Boston & M. Railroad, supra; Worster v. Caylor, supra. See Anno. 53 A.L.R. 1494 and 167 A.L.R. 658, 659.
However, where as in the instant case, the bottle which exploded was in the case which the plaintiff was in the process of removing from the defendant's truck, it is our opinion that the doctrine of res ipsa loquitur does not apply. The reason is that the plaintiff's activity could have caused or contributed to cause the injury and there cannot therefore be an inference of causal negligence on the part of the defendant from the mere proof of the attending circumstances because they are equally consistent with the absence as with the existence of negligence on the part of defendant. Consequently the basis of the doctrine, viz.: that the accident is the type which in the ordinary course of things does not happen if those who have the management use proper care is no longer existent. Boucher v. Boston & M. Railroad, supra; Bell & Sons Co. v. American Ry. Express Co., 84 N.H. 273, 149 A. 497; Dade v. Boston & M. Railroad, 92 N.H. 294, 295, 298, 30 A.2d 485; Stodder v. Coca-Cola...
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Crocker v. W. W. Wyman, Inc.
...186, 175 A. 865. The doctrine of res ipsa loquitur is one which this court had recent occasion to examine in Smith v. Coca Cola Bottling Company, 97 N.H. 522, 524, 92 A.2d 658, where its requirements were fully set out. For reasons there indicated it cannot be relied upon to establish causa......
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...that are sufficient to get a plaintiff's case to the jury and allow the jury to return a plaintiff's verdict. Smith v. Company, 97 N.H. 522, 524, 92 A.2d 658, 659 (1952). The second reason supporting the trial court's refusal was the insufficiency of the evidence to justify any instruction ......
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...had the burden of proof and that the mere fact of injury does not indicate negligence on the part of anyone.' Smith v. Coca Cola Company, 97 N.H. 522, 524, 92 A.2d 658, 659. '(T)here is no magic to the doctrine * * *. It draws nothing out of a hat for the avail of any litigant.' Gillen v. U......