
    The Cleveland Ry. Co. v. Sutherland.
    
      Negligence — Intending passenger struck by window glass falling from street car — Inference or presumption not warranted that window broke through company’s negligence.
    
    (No. 19522
    Decided June 15, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    Suit was brought by Hazel I. Sutherland against the Cleveland Railway Company to recover damages for injuries which she claimed resulted from the negligence of the defendant. The averments of the petition were that while waiting in a safety zone at a designated car stop on Euclid avenue, preparing to board a street car of the defendant company, glass from a window of a car of the defendant company fell, and that large pieces thereof struck plaintiff on her head and face, and that without any fault or negligence on her part, and wholly as a result of the negligence of the defendant, she received certain injuries therein stated.
    The answer of the defendant was a general denial.
    On trial of the case evidence was adduced in support of the averments of the petition, the gist of which was that while plaintiff was standing in the safety zone at a designated street car stop, preparatory to boarding the street car of the defendant company, a street car, which was very much crowded, approached and stopped very suddenly and with a jerk, and that immediately thereafter glass fell upon her, cutting her face; that she did not again look up and did not know where the glass came from. Immediately after the stopping of the car and the falling of the glass, a round hole, about six inches in diameter, “sort of punched out” of the upper portion of a window of the car, was observed by a witness who testified.
    Upon the submission of the case the court instructed the jury as follows: “If you find that she was injured by the falling of glass, a presumption of law arises, in the absence of other proof, that the defendant company was negligent.”
    The court further instructed the jury: “I have said to you that if you find from the evidence that the plaintiff was standing at that point on Euclid avenue and East Twelfth street waiting .to board one of the defendant’s cars, and that it was a usual, regularly designated stopping place; that one of the defendant’s cars stopped there and the glass fell from the car; and you find from the evidence that she was injured — that raises a presumption of law that the defendant company was negligent. That simply means that up to that point your finding must be for the plaintiff as against the defendant.”
    The trial resulted in a verdict for the plaintiff, which was affirmed by the Court of Appeals.
    
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Messrs. Gott, Bloomfield é Orr and Mr. Lewis Drucker, for defendant in error.,
   By the Court.

The question presented to this court is whether the res ipsa loquitur rule has any application in this case.

The contention of counsel for plaintiff below is that the accident happened through an instrumentality or agency which was under the entire management or control of the company, and that the breaking of the glass was caused by an unusual jerk, together with the crowded condition of the car, which injury would not have taken place if the company had exercised due care. Counsel state their view of the legal proposition presented as follows: “The negligence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care.”

Such, of course, is not a correct statement of the res ipsa loquitur doctrine.

It is stated in 29 Cyc., 624, that “the maxim res ipsa loquitur relates merely to negligence prima facie and is available without excluding all other possibilities, but it does not apply where there is direct evidence as to the cause, or where the facts are such that an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as that it was due to his negligence.”

Counsel for plaintiff seem to be relying upon the claim that the negligence of the company in stopping the car with suddenness, together with its overcrowded condition, was the negligence which caused the breaking of the glass and the consequent injury of the plaintiff, and then contend that the burden devolves upon the company to overcome the presumption that such acts of negligence caused the breaking of the glass and the consequent injury.

The facts proven do not indicate that the window of the street car. was broken because of any faulty construction, but rather by reason of the application of some extraneous physical force, for the only evidence offered on the subject was that the glass was broken in a round hole about six inches in diameter, “sort of punched out.” It is quite clear that the breaking of the glass could easily have occurred without any negligence of the defendant. An inference may just as readily be drawn that the window was broken by the act of a third person with which the company had nothing to do. The mere fact that the company was in control of the operation of the car, with a motorman in front and a conductor in the rear, does not warrant the inference or presumption that the breaking of the window at the center of a car, in the manner in which the glass here in question was broken, resulted from the negligence of the company, thus placing upon the company the burden of overcoming such presumption.

Judgment reversed.

Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  