Winslow v. Ohio Bus Line Co.

• Decision Date: 28 May 1947
• Docket Number: 30847.
• Citation: 73 N.E.2d 504,148 Ohio St. 101
• Parties: WINSLOW v. OHIO BUS LINE CO. et al.
• Court: Ohio Supreme Court

73 N.E.2d 504

148 Ohio St. 101

WINSLOW v. OHIO BUS LINE CO. et al.

No. 30847.

Supreme Court of Ohio

May 28, 1947

Syllabus by the Court

1. The doctrine of res ipsa loquitur is not applicable in a case where the petition and proof disclose that plaintiff had knowledge of the facts and circumstances showing the claimed negligence of defendant.

2. Where the facts pertaining to any issue are neither contradicted nor permissive of conflicting inferences, when they are clearly settled and the course dictated by ordinary care can be so clearly discerned as to permit but a single inference, there is nothing proper for submission to a jury. Such issue is to be decided by the trial court as a matter of law and the jury instructed accordingly.

3. If all the material facts touching the alleged negligence admit of no rational inference but that of negligence, the question of negligence becomes a matter of law merely and the court should so charge the jury. (Paragraph five of the syllabus of the case of Cleveland, C. & C. R. Co. v Crawford, Adm'r, 24 Ohio St. 631, 15 Am.Rep. 633, and paragraph three of the syllabus of the case of Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E 246, approved and followed.)

4. Where the question of a defendant's negligence may be determined as a matter of law, it is not error to take from the jury such question of negligence and to leave to the jury the question of whether such negligence was the proximate cause of plaintiff's injuries and, if so, the amount of damages to be assessed.

5. A cause properly appealed to this court is here for the determination of all questions presented by the record, other than the weight of the evidence. Notwithstanding the provisions of Section 12223-21 a. General Code, this court may not pass upon any question unless the record certified to this court by the Court of Appeals discloses that such question was presented to and passed upon by that court.

Appeal from Court of Appeals, Butler County.

Plaintiff below recovered a judgment against defendant (appellee here) for damages on account of personal injuries received while a passenger in a bus of a third party. While the bus of such third party was awaiting time for departure from the Hamilton bus terminal, appellee's servant permitted a bus of appellee to drift through the loading lane and to come into contact with the bus of the third party occasioning injury to plaintiff. The foregoing occurred on private ground.

Plaintiff brought an action against both appellee here and such third party. The amended petition alleged four specific grounds of negligence against appellee. The amended petition contained no allegation of want of knowledge in respect of appellee's negligence.

The right of plaintiff to join the two bus companies was unsuccessfully challenged in the trial court. At the close of the evidence plaintiff asked and was granted leave to dismiss without prejudice the third party.

At the close of plaintiff's evidence, the defendant (appellee here) moved the court for a directed verdict, which motion was overruled. Thereupon such defendant moved the court for the withdrawal from the jury of the several specifications of negligence set forth in the petition, which motion was also overruled. This motion was renewed at the close of all the evidence and overruled.

At the close of all the evidence the remaining defendant (appellee here) moved the court for a directed verdict. This motion was overruled. Such defendant reserved the right to go to the jury if its motion was overruled. Such defendant then moved:

'Now for the purpose of having this cause submitted to the jury and for that purpose only, the defendant, The Ohio Bus Line Company, hereby withdraws its motion for a directed verdict in this cause and hereby requests the court to submit this cause to the jury for its determination of the facts.' No ruling.

Such defendant further moved the court to withdraw a juror and declare a mistrial on account of the dismissal from the case of the owners of the bus in which plaintiff was seated at the time of the alleged accident. This motion was also overruled.

The trial court charged the jury that as a matter of law such defendant was guilty of negligence but left to the jury the question whether such negligence was the cause of plaintiff's injuries, if any, and if so, the amount of the damages. The jury returned a verdict in favor of plaintiff. Motion for a new trial was overruled and judgment entered.

Such defendant appealed to the Court of Appeals, assigning a number of errors all of which were overruled except two, which involved the same question, to wit:

1. 'The trial court erred in the giving to the jury, at appellee's [plaintiff's] request special charge number one' and

2. 'The trial court erred in charging the jury as a matter of law that the collision between the two buses, as set out in the pleadings was caused by the defendant's negligence.'

The Court of Appeals reversed the judgment of the trial court and remanded the case for further proceedings.

The case is in this court following the allowance of a motion to certify the record.

Following such allowance appellee here assigned by brief various errors which had been assigned in the Court of Appeals, as further reasons why the judgment of the Court of Appeals should not be reversed.

C. W. Elliott, of Middletown, and Edward E. Rice, of Hamilton, for appellant.

Wonnell & Brown, of Hamilton, for appellee.

TURNER Judge.

The special instruction No. 1 which the Court of Appeals found to be error reads as follows:

'Now the court tells you that it is established by the evidence that the collision was caused by negligence of The Ohio Bus Line Company bus.

'Therefore, if you find that the collision proximately caused plaintiff to be injured by coming in contact with or being forced upon or against any object in the seat of the New Miami bus, you should return a verdict in favor of the plaintiff against The Ohio Bus Line Company for the full amount of her damage proximately resulting from such injury.

'And in such case you should return such verdict in favor of the plaintiff for the full amount of such damages, against The Ohio Bus Line Company, whether or not such object was permitted to be in the seat by negligence of the Schmidt bus line, and even if you should find that, but for the presence of such object, plaintiff would have sustained no injury.'

The particular part of the foregoing charge found to be error is pointed out in the court's opinion as follows:

'Now the court tells you that it is established by the evidence that the collision was caused by negligence of The Ohio Bus Line Company bus.'

The part of the court's general charge found erroneous is referred to in the opinion of the Court of Appeals as: 'Under the evidence in this case as a matter of law The Ohio Bus Line Company was negligent in the operation of its bus by its driver at the time and place claimed and that such negligence caused the collision which took place between its bus and the New Miami bus on which the plaintiff was at the time thereof a passenger.'

The trial court submitted to the jury only the issues of proximate cause and the extent of damage to plaintiff.

At the close of the Court of Appeals' opinion it was said:

'We are of the opinion that the court erred in charging as a matter of law that the collision between these two buses was caused by the defendant's negligence. We find no other prejudicial error in the record.'

In arriving at such conclusion the Court of Appeals was of the opinion that the evidence presented a case for the application of the doctrine of res ipsa loquitur, and that under the rulings of this court such a case must be submitted to a jury to determine what inferences of negligence should be drawn.

In the first place we are of the opinion that the pleadings and evidence in this case do not present a case for the application of the doctrine of res ipsa loquitur.

Res ipsa loquitur is defined in Vol. 3, Bouv.Law Dict., Rawle's Third Revision, page 2908, as follows: '(Lat. The transaction speaks for itself.) A phrase often used in actions for injury by negligence where no proof of negligence is required beyond the accident itself, which is such as necessarily to involve negligence.'

In the case of Weller, Ex'x, v. Worstall, 129 Ohio St. 596, at page 600, 196 N.E. 637, 639, Judge Zimmerman said of res ipsa loquitur: 'It is founded on an absence of specific proof of acts or omissions constituting negligence.'

As stated by Dr. Albert Levitt in his introduction to Shain's Res Ipsa Loquitur: 'The function of the doctrine of res ipsa loquitur is to supply a fact, which must have existed in the causal chain stretching from the act or omission by the defendant to the injury suffered by the plaintiff, but which the plaintiff, because of the circumstances surrounding the causal chain, cannot know and cannot prove to have actually existed. The missing fact is that the defendant was negligent.'

In 45 Corpus Juris 1206, Section 774, it is said: 'The doctrine of res ipsa loquitur, although it provides a substitute for direct proof of negligence where plaintiff is unable to point out the specific act of negligence which caused his injury, is a rule of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available.'

In 38 American Jurisprudence 995, Section 299, it is said: 'The res ipsa loquitur doctrine is based in part upon teh theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it, and that the plaintiff has no such...