
    No. 88
    B. & O. R’Y CO v. NORCROSS MARBLE CO.
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4664.
    Decided Nov. 19, 1923
    829. NEGLIGENCE — Doctrine of res ipsa loquitur applies to injury of building by railroad when latter fails to explain cause of injury.
    Attorneys — Tolies, Hogsett, Gin & Morley, Cleveland, for R. R. Co.; S. A. Titus, Cleveland, for Norcross Co.
   PER CURIAM:

Epitomized Opinion

First Publication of this Opinion

The Norcross Company recovered a judgment in the Cleveland Municipal Court for damages done to a building on its property by a car operated by the R. R. Co., to reverse which this case comes into this court by petition in error.

The Court of Appeals, in deciding the case, held that the doctrine of res loquitur applies in this case. When the Marble Company proved that the accident happened in the manner in which it did, the burden was thrown upon the R. R. Co. to explain how the accident happened. This they did by showing that a block of some kind got upon the track and caused the injury, but it would seem more natural, from the condition of the railroad track, that the evidence shows that the block undoubtedly fell from one of their ears that made up the train that injured the building; that is, that when the car was derailed the block slid off of the flat car and got wedged in ‘between the building and the track. The evidence shows that the track was clear, as far as it could be observed, prior to the afternoon of the accident, hence the so-called explanation of the R. R. Co. does not explain the situation and the doctrine of res ipse loquitur applies and the plaintiff would be entitled to recovery, therefore the 'judgment is affirmed.  