
    The Cleveland Ice Cream Co. v. Call.
    (Decided April 30, 1928.)
    
      Mr. Joseph B. Keenan, for plaintiff in error.
    
      Messrs. Newcomb, Newcomb & Nord, for defendant in error.
   Sullivan, P. J.

This is a proceeding in error from the common pleas court of Cuyahoga county wherein it is sought to reverse a verdict and judgment of $3,000 recovered for personal injuries happening to one Edward Call, defendant in error, on October 28,1925, while he was employed as a crossing watchman by the Big Pour Railroad at what is known as the Columbus road crossing in the city of Cleveland, Ohio. He was, in line with his duty, in the watchman’s shanty, when a truck on which was painted, “Cleveland Ice Cream Company,” and loaded with small chunks of ice, ran wild, without a driver, down a steep hill on this road, and with force and violence crashed into the shanty occupied by the watchman, inflicting serious injuries, for which he recovered damages, about which, as to the amount, there is no question raised. Neither is there any question raised as to the charge of the court. No evidence was adduced on the part of the company in the trial of the case, excepting medical testimony pertaining to the injuries alleged. This leaves the testimony, excepting as to the medical evidence, unchallenged.

It is claimed that the court committed prejudicial error in not directing a verdict for the company on the ground that the testimony was insufficient to show ownership of the truck in the company, and to show that the truck was driven by a servant of the company, who was engaged in the business of the company at the time of the injury. ,

There is credible evidence in the record, unchallenged, that the truck was in the habit daily, as a rule, of halting at the top of the hill in the road in question, where there was located a certain restaurant, and on such occasions commodities connected with the ice cream industry were delivered by persons in charge of the truck, or one similar to it, to the proprietor of the restaurant. Thus it is established in the record by credible evidence that the ownership of the truck was in the Cleveland Ice Cream Company, and that on these occasions, when its goods were delivered, the truck and the driver thereof were on the business of the company. The name, “The Cleveland Ice Cream Company,” on the truck, and this evidence of deliveries at the top of the hill almost daily, especially in the light of no challenge appearing in the record, are evidence of probative force that the truck which collided with the shanty and caused the injuries was the property of the company, and that at the time of the injury it was engaged as an instrumentality in the company’s business. These facts are sufficient to establish liability in the company, because this truck, the property of the company, on the business of the company, was running wild without a driver at the time of the collision which produced the injury. These facts, we think make a clear case of res ipsa loquitur, and consequently it is unnecessary to resort to an analysis of the authorities cited in the brief of learned counsel for the company, especially the cases of White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas., 1914C, 1082, and Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634, and other citations of a similar nature, because those cases deal with the question that an inference cannot be builded upon another inference. There is no need for applying this doctrine to the present case, because the question whether the driver was the agent and employee of the company has no application in the instant case, as there was no driver whatsoever, and the automobile, the property of the company, was running wild, and hence the doctrine of res ipsa loquitur becomes the paramount issue, although we think there is credible evidence in the case, already noted herein, to establish the fact, in the absence of a challenging defense, that the truck belonged to the company and that it was in charge of a servant engaged in the performance of his regular line of duties.

However, it is unnecessary to build those inferences with which the citations above noted deal, for the reason that the driver is eliminated under the doctrine of res ipsa loquitur, and we have, as an indisputable situation, the property of the company transformed into a dangerous instrumentality which is the proximate cause of the injuries complained of.

The principle of res ipsa loquitur imports that a prima facie case can be made out without any direct proof of actionable negligence. Bien v. Unger, 64 N. J. Law, 596, 46 A., 593.

This doctrine of law means that a jury is justified in a verdict based upon their knowledge as men of the world, and that accidents like the one at bar do not happen excepting through some miscarriage of duty on the part of the defendant sought to be held, and the inference is established that it was the defendant’s fault unless it is justified, explained, or excused in some manner, and in the instant case there was no attempt to make any explanation whatsoever, and therefore the inference and the circumstances deducible from the credible evidence in this case are unchallenged. This doctrine is laid down in Pinney v. Hall, 156 Mass., 225, 30 N. E., 1016.

The runaway truck in coming down the hill without any one in control speaks for itself, and under the doctrine under discussion a jury has a basis for inferring that the negligence of the defendant was the cause of the accident. The record in the case shows there is reasonable and rational evidence of negligence, and, inasmuch as it shows ownership, the truck which caused the injury was necessarily under the management and control of the defendant or its servant. In the ordinary course of events, an accident does not happen if those in control use proper care, and a rational conclusion can be reached, in the absence of any explanation, that the accident arose from want of the exercise of ordinary care. There is sufficient evidence in the record for justification of these conclusions.

There is no rational conclusion to be reached from the collision in the instant case, under the circumstances and the surrounding evironment, other thau that the defendant in error was lacking in the exercise of ordinary care. By reason of these premises we hold that sufficient negligence has been established by the record to show a prima facie, case, and, inasmuch as there is no defense, this case remains unchallenged and undenied. In other words, the act speaks for itself. The speaking is the voice of the defendant interpreting its own act, and there are attached to the act sufficient circumstances of a collateral nature to relieve the charge of negligence of the dignity of a legal issue.

In the instant case the truck running wild is the same in legal effect as if while being properly driven a wheel came off and struck the shanty and injured the defendant in error in the manner done by the truck itself. Were it the wheel instead of the truck, there could be no question about the doctrine of res ipsa loquitur. That it was the truck itself running on four wheels, makes the case no different in legal effect.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  