
    No. 536
    ABINGDON CARTAGE & STORAGE CO. v. VANDERHOFF
    No. 20278.
    Supreme Court.
    On motion to certify.
    Dock. Jan. 19, 1927,
    5 Abs. 59.
    1028. RES IPSA LOQUITOR — Does the doctrine of Res Ispa Loquitor apply:
    1. When a presumption of negligence is not warranted?
    2. When it may reasonably be inferred that the accident was due to a cause other than negligence?
    3. When the plaintiff relies on specific acts of negligence.
    829. NEGLIGENCE. — 260. Common Car-* riers — Can negligence be proven:
    When there is no evidence tending to show that the defendant (A cartage company) knew that the article carried was probably dangerous.
    Attorneys — Thompson, Hiñe & Flory for Company; C. W. Kreig for Vanderhoff; all of Cleveland.
   The Cartage Co. was hauling carboys of carbon gas from 1516 Euclid Ave., in Cleveland, to a store room on Euclid Avenue, near the Public Square. Before the carboys were loaded, the truck driver noticed that several of them were not equipped with safety caps. The shipper told the driver that the carboys were safe in their then condition. During the process of unloading, at a time when no one was in or near the truck, gas began to escape from one of the tanks. The propelling force of the escaping gas caused the tank to leave the 'truck, and to whirl and gyrate around on Euclid Ave., finally striknig Vanderhoff, and causing alleged injuries. Vanderhoff instituted this action in the Cuyahoga Common Pleas, to recover damages for said injuries. The trial court directed a verdict for defendant, (plaintiff herein), holding that res ipsa loquitor does not apply, and further that there was no evidence of negligence.

The Court of Appeals reversed the Common Pleas.

Plaintiff herein asks an order directing the Court of Appeals to certify its record and contends:

1. The doctrine of res ipsa loquitor does not apply for the reasons that:

a. The character of the action is not such as in law warrants a presumption of negligence. Loomis v. Toledo Ry. & Lt. Co. 107 OS. 161. Huff v. Austin, 46 OS. 389. O’Day v. Shouvlin, 104 OS. 519, 527.

b. It is reasonably to be inferred from the evidence that the accident was due to a cause other than the negligence of the defendant.

c. The plaintiff alleges and relies on specific acts of negligence.

2. There is no evidence proving or tending to prove negligence.

a. The record is silent on the material element of plaintiff’s case, that the defendant knew that the tank was filled with gas.

b. A fair preponderance of the evidence clearly reveals that the defendant used due care. The Cleveland-Akron Bag Co. v. Jaite, etc., 12 OS. 506.  