Thompson v. Cooles
| Decision Date | 22 August 1935 |
| Citation | 180 A. 522,37 Del. 83 |
| Court | Delaware Superior Court |
| Parties | GURNEY THOMPSON v. JOHN COOLES |
Superior Court for New Castle County, January Term, 1935.
Demurrer to declaration.
The declaration filed consisted of two counts. The first count alleged that the plaintiff was, at the invitation of the defendant, lawfully in a pool room owned and operated by him and while there, was struck and injured by a piece of plaster falling from the ceiling.
The second count charged negligence specifically, in that "the said defendant failed and omitted to warn Gurney Thompson to keep out of said pool room, located in said building when he, the said defendant, knew, or should have known by reasonable inspection of the ceiling, that the plaster was in a loosened condition and liable to fall."
The defendant demurred generally.
The demurrer is sustained.
Knowles and Knowles for plaintiff.
William S. Satterthwaite for defendant.
OPINION
The rule, res ipsa loquitur, is invoked in aid of the first count, and it is to be determined whether it ought to be applied to the situation presented.
This doctrine has been recognized in this State in cases of injuries by machinery and dangerous agencies. In Sweeney v. Jessup & Moore Paper Co., 4 Penne. 284, 54 A. 954, the court, on demurrer, without opinion, held the rule to apply in the case of an explosion of a wood pulp digester. In Wood v. Wilmington City Ry. Co., 5 Penne. 369, 64 A. 246, the rule was applied in the case of an injury to a horse by an electric shock caused by its stepping upon a rail which had become charged with electricity. Also, in Edmanson v. Wilmington & Philadelphia Traction Co., 2 W. W. Harr. (32 Del.) 177, 120 A. 923, 924, the rule was held applicable where the plaintiff was injured by an electric shock caused by his touching a wire fence on his land against which a charged wire of the defendant company had fallen, thereby transmitting the current to the fence.
In Starr v. Starr, 5 W. W. Harr. (35 Del.) 556, 170 A. 924, application of the rule was denied in the mere skidding of an automobile; and in Mitchell v. Atkins, 6 W. W. Harr. (36 Del.) 451, 178 A. 593, the doctrine was refused recognition as against a dentist who had administered nitrous oxide gas to a patient preparatory to extracting a tooth, in the course of which operation the patient died.
In Giles v. Diamond State Iron Co., 7 Houst. 453, 8 A. 368 (Diamond State Iron Co. v. Giles, 7 Houst. 556, 11 A. 189) the plaintiff did not rest his case on the rule, but upon a distinct averment of negligence in erecting a building with insufficient walls, and in violation of a city ordinance prescribing the thickness of walls.
In the Wood Case and in the Edmanson Case the rule is defined substantially as pronounced by Erle, C. J., in Scott v. London & St. K. Docks Co., 3 Hurl. & C. 596, where a passerby was injured by the fall of goods from a crane. In the Edmanson Case it was said that the doctrine applied "whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care," citing 20 R. C. L. 187.
In Starr v. Starr, supra, limitations of the doctrine were noticed. There, it was said that the rule was not an arbitrary one, but a simple rule of evidence, depending upon sound sense and reason, its application to be considered always with reference to the special facts of the case and the teachings of experience with regard to them; that it is not the naked injury, but the manner and attending circumstances of the occurrence that justify the application of the rule which is not of general application, or of exact classification; and, that the doctrine is of limited and restricted scope, ordinarily to be applied sparingly and with caution, in peculiar and exceptional cases, not in a manner to work injustice to a defendant, but only where the facts and demands of justice make the application essential. See Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 P. 325, 16 L. R. A. (N.S.) 931, 126 Am. St. Rep. 870; San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 32 S.Ct. 399, 56 L.Ed. 680.
The rule as stated and applied by the English Court in Scott v. London, etc., Docks Co., supra, upon the facts there presented, has spread rapidly in this country, and has frequently been applied in cases of injuries by falling objects. 20 R. C. L. 191; 45 C. J. 1200, note c. on page 1201.
Specifically, the rule has found application in cases of injuries sustained from the falling of plaster from ceilings, as is the case here, but, we think, without sufficient justification.
In Morris v. Zimmerman, 138 App. Div. 114, 122 N.Y.S. 900, 903, and in Halterman v. Hansard, 4 Ohio App. 268, the doctrine was applied where a guest in a hotel was injured by a fall of plaster from a ceiling of the room occupied by the guest; in Law v. Morris, 102 N.J.L. 650, 133 A. 427, 46 A. L. R. 1108, and in Taylor v. Popular Dry Goods Co. (Tex. Civ. App.), 10 S.W.2d 191, the injured plaintiffs were customers in the stores of the defendants; and in Bonita Theatre v. Bridges, 31 Ga.App. 798, 122 S.E. 255, the plaintiff was attending a performance in the defendant's theatre.
In the last cited case, however, the court referred to a provision of the Civil Code making the owner of a building responsible to others for damages arising from defective construction, and held that it was the defendant's absolute duty to know the condition of the plastering. In the Taylor Case, it appeared that the plaster was applied directly to concrete, and there was testimony that no adhesive had been found positive in character between concrete and plaster. In Morris v. Zimmerman, there was a strong dissenting opinion by the presiding justice.
With deference to the courts which have seen fit to apply the rule, in actions of tort, to the mere fall of plaster from a ceiling causing injury, we are not convinced of the wisdom or necessity of its application to the situation disclosed by a count where the proof must be supposed to be no more than that the building was owned and controlled by the defendant, and that the plaintiff, an invitee, was injured by the fall of plaster from a ceiling, with nothing to indicate its weakened or dangerous condition, such as cracks, bulging or sagging, or of previous repairs thereto.
The rule does not apply to every cause of injury or accident, but only to those whose mere occurrence implies a breach of duty. Gallagher v. Edison, etc., Co., 72 Mo. App. 576; nor does an unusual occurrence resulting in injury, of itself, raise the presumption of neglect, for the accident must be such as necessarily involves negligence. Eaton v. New York Cent. & H. R. R. Co., 195 N.Y. 267, 88 N.E. 378; 45 C. J. 1211.
Judge Cooley with reference to the application of the rule, quotes from Zahniser v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 A. 707, as follows:
"In cases where the duty is not absolute, but arises in the ordinary course of business, it is essential that the transaction was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and that the result was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than neglect." 2 Cooley, Torts (3d Ed.) 1425.
As has been said, the doctrine is a mere rule of evidence by which a jury is permitted to infer negligence, or want of care, from the proof of injury and attendant circumstances. The presumption arising is one of fact, not law, and manifestly, if the rule be held applicable to a given situation, the decision is for the jury, not for the court. Sinkovitz v. Peters Land Co., 5 Ga.App. 788, 64 S.E. 93; Taylor v. Popular Dry Goods Co., supra.
Now, negligence, in the abstract is a nullity. Concretely, it is positive or negative. It may consist in doing something which ought not to have been done, or in leaving undone something which ought to have been done. It involves the idea of a duty to act in a certain way toward others, and a violation of that duty by acting otherwise.
The term is relative, and its application depends upon the situation of parties and the degree of care and vigilance which circumstances reasonably impose. In a legal sense, negligence is no more or less than the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Diamond State Iron Co. v. Giles, supra; or as said by Baron Alderson, in Blyth v. Birmingham Water Works Co., 11 Exch. 784, a definition often quoted with approval:
"Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a...
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