
    Glowacki, a Minor, v. The North Western Ohio Ry. & Power Co.
    
      Negligence — Res ipsa, loquitur a rule of evidence — Permitting jury to draw inference of negligence, when — Inference not controlling upon, but to be considered by jury, when— Court may draw like inference when trier of facts — Court to submit question to jury, when — Weight of inference and of explanation thereof for jury or court, when.
    
    
      1. The rule of res ipsa loquitur is not a substantive rule of law. It is rather a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of one of the parties and an accident occurs under circumstances where in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions. A like inference under like circumstances may be drawn by the court when the court is the trier of the facts.
    2. Where the allegations in a petition and the evidence offered in support thereof call for the application' of the rule of res ipsa loquitur, and where the defendant has offered evidence tending to meet and explain the circumstances, it is the duty of the court, when requested so to do by either party, to submit the question to the jury under proper instructions.
    3. The weight of the inference as well as' the weight of the explanation offered to meet the inference is for the determination of the jury in a jury trial or for the determination of the court when the court is the trier of the facts.
    (No. 20165
    Decided May 11, 1927.)
    Error to the Court of Appeals of Ottawa county.
    Laura Glowacki, a child of approximately 5 years, was seriously injured on July 5, 1923, at about 10 o’clock in. the morning, while playing m the public highway in front of and near to the residence of her parents, near Gypsum in Ottawa county, Ohio, by picking up a live wire carrying 2300 volts of electricity, one end of which wire was detached and lying upon the ground and suspended from a pole of the defendant company erected in said highway. It was alleged in the amended petition as negligence that the defendant failed “to provide against the separation of said wire over, and its precipitation upon said public highway.” The defendant answered admitting its ownership and operation of an interurban electric railway, and that it was engaged in the manufacture and distribution of electric light and power current to people along and adjacent to said electric line. The answer further admitted the maintenance and operation of an electric feed wire in and upon the public road running north and south through the hamlet of Gypsum, and that said electric feed wire is maintained and operated by defendant upon poles set up by defendant. As a special defense it was alleged: “That some time during the night of July 4, 1923, some person, while shooting firearms, shot a feed wire, belonging to .this defendant, in two by striking the same with a bullet, and that this defendant had no knowledge that said feed wire had been so shot off during the night of July 4th, until after the said Laura Glowacki was injured.”
    This special defense was traversed by the reply. At the trial the plaintiff introduced evidence of location of the wire, the voltage it carried, the nature and character of the injuries to the child, and that the customers of defendant were deprived of light after about 9:45 p. ru. on July 4th. The plaintiff introduced no evidence to show a defective condition of the wire, either in regard to its original construction or subsequent maintenance. On cross-examination, one of the witnesses of the plaintiff testified that the wire was a good wire, in good condition, and well insulated. Another of plaintiff’s witnesses testified on cross-examination that he had knowledge of the four wires on that line in the summer of 1923, and that they were in first-class condition. Neither of these witnesses testified from any knowledge of an inspection of the wires before the time of the casualty. The defendant introduced evidence tending to show that the wire was shot off by a bullet fired from a .45 caliber pistol. A cartridge was found on the ground near the place, and the ends of the wire were introduced in evidence, and it was claimed that the ends of the wire indicated a severance by means of a bullet. There was further evidence of shots having been heard by persons in the neighborhood at about the hour when the lights went out. Plaintiff offered no direct evidence as to the cause of the severance of the wire, except by cross-examination of one of defendant’s witnesses, one Mr. Whaley, who stated that the marks on the wires were caused by “nipping of the pliers.” Whether this nipping referred to the point where the wire was severed, or refers to the removal of the ends of the wires in order to produce them as evidence in the case, does not clearly appear. It will be assumed for the purpose of this review that the nipping referred to the severance of the ends of the wires and not to the point of severance which caused the wire to fall. Upon this state of the record the court charged the jury as follows:
    “Now, if you find from the evidence that the wire in question was at the time and place of plaintiff’s injuries the property of the defendant and that said wire was at said time and place under the management and control of the defendant, and that it was then and there charged by the defendant with a dangerous current of electricity, and that said wire was broken and lying in the highway at the time and place of plaintiff’s injuries, and that she was injured by coming in contact with said wire in the manner claimed by her in her petition, then I instruct you that a presumption of negligence arises on the part of the defendant company in the construction, management, and maintenance of said wire, and casts upon the defendant the burden of meeting such presumption. Such presumption need not be overcome by the defendant by a preponderance of the evidence. If the defendant company produces sufficient evidence to balance such presumption, the presumption is overcome. Of course, if the defendant company produces evidence to overcome such presumption — that is, of greater weight than the presumption — then the presumption is removed. If you find from the evidence that the wire in question was broken at said time and place by a bullet shot against it and that this was the sole and proximate cause of the breaking of said wire at said time and place, then the said presumption of negligence as to the construction, management, and maintenance of said wire on the part of the defendant is rebutted and overcome. If you find from the evidence that said presumption has been overcome, then I charge you that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence, that the breaking and falling of said wire was caused by the negligence of the defendant in the construction, management, and maintenance of said wire, or in one or more of said ways.”
    The jury returned a verdict in the sum of $6,000, upon which judgment was entered, and error was later prosecuted to the Court of Appeals. That court reversed the judgment of the trial court on the ground that the trial court had applied the maxim of res ipsa loquitur in that portion of the charge above quoted, and that in the state of the record that doctrine should not have been charged, and that therefore prejudicial error intervened. From the opinion of the Court of Appeals we quote the following:
    “It follows that no inference can be drawn from all the evidence except that the cause of the falling of the wire was that it was struck by a bullet discharged from a firearm, fired by some third person not shown to be connected with the defendant company. The proof as to the cause of the wire being down rebutted and destroyed the presumption arising from the mere fact that it did .fall. As there was no evidence to sustain the claim of the plaintiff that the defendant was guilty of negligence in respect to the falling of the wire and the presumption of negligence arising therefrom had been destroyed, it was prejudicial error for the court to charge the doctrine of res ipsa loquitur, and it was also prejudicial error to submit the issue of negligence of the defendant in that respect to the jury.”
    The judgment was therefore reversed, and the cause remanded for new trial. The cause has been admitted to this court upon allowance of the motion to certify the record.
    
      Messrs. Gordon & Gordon, and Messrs. Graves & Duff, for plaintiff in error.
    
      Messrs. True, Gra/wford & True, for defendant in error.
   Marshall, C. J.

The allegations of the petition and the admissions in the answer were such as to raise an issue upon the subject of res ipsa loquitur, and the evidence offered by plaintiff, meager as it was, was such as to require the defendant to go forward with an explanation of the cause of the severance of the wire. Defendant’s counsel evidently appreciated this situation, because, upon the overruling of the motion for a directed verdict at the close of plaintiff’s testimony, the defendant proceeded to call witnesses. The motion for directed verdict having been overruled, and the defense having introduced evidence for the purpose of explaining the severance of the wire, consistency on the part of the trial court required a charge on the subject of res ipsa loquitur, unless the evidence of the defendant by way of explanation was so direct and conclusive as to the cause of severance as to leave no question of fact upon the subject of the cause of the severance for the jury to decide. The common pleas court was evidently of the opinion that that evidence was not conclusive. It is equally apparent that the Court of Appeals believed it to be conclusive, because it was stated in the opinion of the Court of Appeals that “the presumption of negligence arising from the falling of the wire had been destroyed” and that the fact of charging at all upon the subject of res ipsa loquitur was prejudicial error. An examination of the testimony of defendant’s witnesses discloses that no witness observed the act of shooting, no witness saw the wire fall as a result of a shot, neither was there any direct evidence on the part of either plaintiff or defendant relative to the cause of the severance of the wire. Upon the part of the plaintiff, reliance was placed upon the control and management of the transmission line by the defendant, and upon the fact that its falling was such an occurrence as in the ordinary course of events does not happen if due care has been exercised, and upon the rule of law which permits an inference to be drawn from the fact of such exclusive control, and the fact that the accident is such as in the ordinary course of things does not happen if those having the management use reasonable care. On the part of the defendant no direct evidence was offerred, but reliance was placed upon certain facts and circumstances. The trial court charged that those facts and circumstances were to be weighed by the jury. The Court of Appeals reversed upon the theory that the inference had been destroyed. It is conceivable that the evidence on the part of a defendant could be so direct, so clear and so unimpeachable that a trial court would be justified in declaring that the inference had been fully met. But it is quite certain that it has never been decided in any reported case prior to this declaration of the Court of Appeals that the explanation should not be submitted to the jury under proper instructions. All of the adjudications are to the contrary. The jury was not required to believe that the explosions heard by the witnesses who testified for the defendant were caused by pistol shots. It being the evening of July 4th, the jury might have believed that they were perfectly harmless explosions which frequently occur as a part of the celebration of that holiday. The jury was not required to believe, however credible the witnesses, that the cartridge shell was found near the place of the severed wire. The jury was not required to believe that the wires were in good condition prior to the accident, or that the condition of the wire at the point of severance was such as to indicate that the same was caused by a bullet or any external cause. The two ends of the wire were offered in evidence and became a part of the record. Without attempting to declare the cause of the severance, the condition of the two ends is such as to preclude any court from declaring as a legal conclusion that the severance was caused by a bullet. If the trial court had refused to charge upon the maxim of res ipsa loquitur, and if the trial court had declared, as the Court of Appeals has declared, that the inference had been completely destroyed, the trial court by such action would have invaded the province of the jury.

The doctrine of res ipsa loquitur involves a rule of considerable difficulty, and has become involved' in much contradiction in the courts of various jurisdictions, and the former decisions of this court are not entirely free from contradiction. The difficulty has arisen in part in a confusion of terms and a failure to draw the proper distinction between presumptions and inferences. It will be found that the more carefully considered opinions of this and other courts have avoided treating the rule as a presumption. The distinction between an inference and a presumption is well stated by Judge Wilkin in Ensel v. Lumber Ins. Co., 88 Ohio St., 269, 102 N. E., 955, at page 282 of the opinion, (102 N. E., 959) which we quote:

“The error of counsel throughout this case, lies in a confusion of terms. They mistake inference for presumption — a slip too often unconsciously made by judges as well as lawyers. A presumption is a rule which the law makes upon a given state of facts; an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven. ’ ’ ■ Paraphrasing the language of Judge Wilkin and applying it to the present controversy, the court would have been more accurate in charging that, owing to the fact and circumstance of the defendant having the management and control of the wire and poles, the same being charged with a dangerous current of electricity, and the wire being found broken and lying in the highway, and the cause of plaintiff’s injuries, the jury would be warranted in inferring negligence on the part of the defendant. Such an inference of negligence, if drawn by the jury, would become a conclusion founded upon common experience. To say that a presumption of negligence arises upon the foregoing facts and circumstances is to say that those facts and circumstances create a rule of law, which would necessarily cast upon the defendant the burden of overcoming the same by a preponderance of evidence and not merely meeting them by evidence of equal weight.

Wigmore has discussed this proposition in his work on Evidence, Yol. 5, Sections 2490 and 2491, in which he reaches the conclusion that presumptions ' of fact are not presumptions at all. It is further declared that a presumption is a rule of law laid down by the judge attaching to one evidentiary fact certain procedural consequences as to the duty of production of other evidence by the opponent. He further states:

“It is based, in policy, upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact; but the presumption is not the fact itself, nor the inference itself, but the legal consequence attached to it.”

In Cogdell v. Wilmington & W. Rd. Co., 132 N. C., 852, 44 S. E., 618, it is stated:

“The court was requested to charge that there was a presumption that the deceased had exercised care, which the court refused to give, but charged the jury that there was an inference that due care was exercised. * * # The presumption has a technical force of weight and the jury, in the absence of sufficient proof to overcome it, should find according to the presumption, but in the case of a mere inference there is no technical force attached to it. The jury, in the case of an inference, are at liberty to find the ultimate fact one way or the other as they may be impressed by the testimony. In the one ease the law draws a conclusion from the state of the pleadings and evidence and in the other case the jury draw it. An inference is nothing more than a permissible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by the jury.”

One of the causes of the difficulty in which the doctrine of res ipsa loquitur is involved lies in the fact that facts and circumstances widely differ, and the obligation of due care also widely differs in different cases. For instance, it has long been recognized that a high degree of care is owing by a carrier to a passenger, and in those cases where the rule of res ipsa loquitur has application the carrier is charged with the burden of proving that the accident was not occasioned by its negligence. This has been declared by a number of decisions of the United States Supreme Court, and this rule would clearly be a proper rule in this court where the relation of carrier and passenger is involved. In ordinary cases of negligence it is only necessary to meet the inference by evidence of equal weight. It would be fruitless to review any considerable number of the cases on the subject of res ipsa loquitur, because of the confusion in which the decisions are involved. A very clear opinion is found in Sweeney v. Erving, 228 U. S., 233, 33 S. Ct., 416, 57 L. Ed., 815, Ann. Cas., 1914D, 905. We quote from page 240 of the opinion (33 S. Ct., 418):

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may he lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.”

The court in that case cited a number of authorities. That case and the authorities cited and approved studiously avoided the use of the word “presumption.” The court particularly approved the case of Stewart v. Carpet Co., 138 N. C., 60, 50 S. E., 562, and the opinion of that case, at page 66 (50 S. E., 565), as follows:

“The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator attributable to the defendant’s negligence. The law attaches no special weight, as proof, to the fact of an accident, but simply holds it to be sufficient for the consideration of the jury even in the absence of any additional evidence.”

The court in the instant case carefully defined preponderance of the evidence and carefully placed upon the plaintiff the burden of proving negligence by a preponderance of the evidence.

The principles governing the rule of res ipsa loquitur have been set forth at some length in St. Marys Gas Co. v. Brodbeck, Adm’r., 114 Ohio St., 423, 151 N. E., 323. One paragraph from page 433 of the opinion (151 N. E., 326) in that case becomes the controlling rule of law in the instant case:

“It is a rule of .evidence which permits or requires the inference of negligence where an accident occurs under circumstances where, in the ordinary-course of events, such accidents do not occur. It is at best an evidential inference not binding upon a jury, but to be considered by it under proper instructions. The weight of the inference as well as the weight of the explanation is for the determination of the jury.”

In the argument of the instant case counsel for both parties referred to Loomis v. Toledo Rys. & Light Co., 107 Ohio St., 161, 140 N. E., 639. The conclusions we have reached do no violence to the results reached in that case. That was a case where poles had been broken down by a severe storm, and one of the poles, in falling, injured the claimant. That case was decided upon the authority of Sweeney v. Erving, 228 U. S., 233, 33 S. Ct., 416, 57 L. Ed., 815, Ann. Cas., 1914D, 905;, Metropolitan Ry. Co. v. Jackson, 3 L. R. App. Cas., 193; McGrath v. St. Louis Transit Co., 197 Mo., 97, 94 S. W., 872; Wadsworth v. Boston El. Ry. Co., 182 Mass., 572, 66 N. E., 421, and other cases. The controlling fact in the Loomis case was that the casualty was as attributable to the vis major as to any negligence on the part of the defendant, and that under such circumstances the rule of res ipsa loquitur has no application. All of the cases cited bear out that theory and clearly establish the rule of law that the doctrine of res ipsa loquitur should not be applied, where, by the pleadings and the evidence of the defendant, another cause equally efficient is shown.

The rule established by those authorities is well stated in 1 Shearman & Redfield on Negligence (6 Ed.), Section 58b, as follows:

“The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. If from the nature of the event causing the injury an inquiry naturally arises which one of two or more persons, acting independently, is responsible; or, if it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms.”

The charge to the jury in the instant case, while correct in its general instruction upon the subject of negligence and the burden of proof, was somewhat" involved in the indiscriminate use of the term “presumption,” and it is therefore impossible to determine whether or not the verdict of the jury was influenced by that portion of the charge. The majority of the court is therefore' of the opinion that the judgment of the Court of Appeals should be reversed, and the cause remanded to the court of common pleas for a new trial in accordance with this opinion.

Judgment reversed and cause remanded.

Kinkade, Robinson and Matthias, JJ., concur.

Day and Allen, JJ., concur in the syllabus and in the judgment of reversal, but not in remanding the cause.

Jones, J.,

dissenting. I am unable to distinguish this case from Loomis v. Toledo Rys. & Light Co., 107 Ohio St., 161, 140 N. E., 639. It is worthy of note that the Court of Appeals of Lucas county, which reversed the judgment in the instant case, was the same court that decided the Loomis case, supra. In that case the second paragraph of the syllabus holds:

“Where the proof raises a probability that such falling poles and wires were caused by a vis major, the presumption of negligence does not arise. In such case the plaintiff must sustain his specific allegations of negligence by a preponderance of the evidence.”

In that case the trial court refused to apply the doctrine of res ipsa loquitur, and we affirmed that decision. In my judgment the two cases are exactly alike. In the Loomis case the defendant offered proof raising a probability that the falling wires were caused by an extraordinary storm or a vis major. Here the proof offered raised a strong probability that the wires were shot down by some person unconnected with the defendant. It is impossible for me to make any distinction in principle between the two cases.

In the instant ease, the Court of Appeals, reviewing the evidence, said:

“There is no evidence tending to show that the wire in question was out of repair or defective prior to the time that the lights went out. The evidence does show that shells from a .45 caliber revolver were found at the place where the wire was broken, and portions of the wire itself are offered in evidence which clearly show the marks of what might have been a metal-jacketed bullet. * * * In the case at bar there was no evidence tending to show that the defendant company was guilty of negligence in constructing, maintaining, or keeping in repair the wire in question up to the time it fell. In fact, all the evidence tends to show that up to that time the wire was in good condition. It follows that no inference can be drawn from all the evidence except that the cause of the falling of the wire was that it was struck by a bullet discharged from a firearm, fired by some third person not shown to be connected with the defendant company. The proof as to the cause of the wire being down rebutted and destroyed the presumption arising from the mere fact that it did fall. * * * It was prejudicial error for the court to charge the doctrine of res ipsa loquitur.”

And this record supports the statement of the Lucas county Court of Appeals.

In the Loomis ease the trial court had refused to charge and apply the rule of res ipsa loquitur; in the instant case it did charge it in the face of the proof that the shooting down of the wires was done by some one not connected with the defendant. The trial court said to the jury:

“That a presumption of negligence arises on the part of the defendant company in the construction, management, and maintenance of said wire, and easts upon the defendant the burden of meeting such presumption.”

The opinion in the Loomis case quotes the following from the text in 29 Cyc., 624, which same text is again quoted with approval by this court in its per curiam in Cleveland Ry. Co. v. Sutherland, 115 Ohio St., 262, 152 N. E., 726. The doctrine thus approved in both cases is stated as follows:

“The maxim res ipsa loquitur relates merely to negligence prima facie and is available without excluding all other possibilities, hut 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 he drawn as reasonably as that it was due to his negligence.” (Italics mine.)

Every member of this court concurred in that statement of the rule in the Sutherland case, supra.

In the absence of proof tending to show a probability that the wire was caused to fall by the act of another than the defendant, it would be the duty of the trial court to charge the doctrine res ipsa-, but, under the rule laid down by this court in the Loomis and Sutherland cases, the court erred in charging the doctrine and casting “the burden of meeting such presumption” where explanation was furnished by evidence showing strong probability that the wires were shot down during the night of this national holiday on July 4, 1923.

The view here taken is also sustained by the case of Livingston & Co. v. Streeter, 114 Ohio St., 144, 150 N. E., 734. In that case the negligence was admitted by the defendant. In the instant case the answer of the defendant not only denies the allegations of negligence, but specifically avers “that some time during the night of July 4, 1923, some person, while shooting fire arms, shot a feed wire, belonging to this defendant, in two by striking the same with a bullet.” The judge delivering the opinion in the Streeter case, supra, referring to the Loomis case, supra, said:

“The defendant’s evidence fully met any presumption of negligence that might otherwise have existed, and made a case where it would have been entirely improper to have charged the doctrine of res ipsa loquitur. The plaintiff requested such a charge, but the trial court refused it.”

The trial court, under the authority of the cases cited, should not have charged the res ipsa rule under the circumstances shown by this evidence. The Court of Appeals clearly followed the procedural rule heretofore adopted by this court, and its judgment should not be reversed for so doing.

Day, J.,

dissenting. I am unable to concur in so much of the judgment as remands this case for a new trial, for the reason that the verdict of the jury might have been returned in favor of the plaintiff upon the issue of negligence of the power company, regardless of the doctrine of res ipsa loquitur. The verdict being a general one, and there being no interrogatories to show but that the same was based upon the issue of simple negligence, it should be sustained under the rule announced in Sites v. Haverstick, 23 Ohio St., 626; Tod v. Wick Brothers & Co., 36 Ohio St., 370, 389; Beecher v. Dunlap, 52 Ohio St., 64, 38 N. E., 795; National Union v. Rothner, 57 Ohio St., 679, 50 N. E., 1131; McAllister v. Hartzell, 60 Ohio St., 69, 53 N. E., 715; State ex rel. Lattanner v. Hills, 94 Ohio St., 171, 113 N. E., 1045, L. R. A., 1917B, 684; Jones v. Erie Rd. Co., 106 Ohio St., 408, 140 N. E., 366; Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644; Hubert v. Kessler, Trustee, 108 Ohio St., 584, 142 N. E., 38.

Allen, J., concurs in the foregoing dissenting opinion of Day, J.  