Opinion
No. 30903
Decided May 28, 1947.
Negligence — Res ipsa loquitur a rule of evidence — Jury may draw inference of negligence, when — Res ipsa loquitur inapplicable — Injury resulted from displaced sidewalk manhole cover over sublessee's premises — No showing of sublessee's use, control or notice of displacement — Sublessee entitled to directed verdict unless evidence of negligence adduced.
1. Res ipsa loquitur is a rule of evidence which permits, but does not require, the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive control and management of the defendant, and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury.
2. Res ipsa loquitur does not apply to a situation in which an injury occurs as the result of the displacement of a manhole cover located in a public sidewalk over premises subleased to a defendant, where there is no showing that such defendant was in exclusive control of the cover, had made use of it, had notice of the displacement, and where it is apparent that the displacement could have been due as well to the intervention of an outside force or of a third person as to any negligence of the defendant.
3. In such circumstances, evidence of negligence on the part of the defendant must be adduced and in the absence of such evidence the defendant is entitled to a directed verdict in his favor upon motion therefor.
APPEAL from the Court of Appeals for Stark county.
In this tort action, begun in the Court of Common Pleas of Stark county, the plaintiff, Gertrude Renneckar, a school teacher, seeks to recover damages from the defendant, The Canton Terminal Restaurant, Inc., on account of personal injuries she sustained by reason of the defendant's alleged negligence.
At the close of all the evidence, upon defendant's motion, the trial judge directed the jury to return a verdict for the defendant, on the ground that the evidence failed to establish defendant's liability.
Plaintiff took an appeal to the Court of Appeals from the judgment against her. That court reversed the judgment below and remanded the cause, for the reason, as stated in the judgment entry, "that the Court of Common Pleas at the close of all the evidence should not have sustained, but should have overruled the motion of the defendant for a directed verdict."
The cause is now in this court for decision on its merits, following the allowance of the motion to certify.
At the trial of the action, it was developed that about 7:30 o'clock p. m. on January 24, 1943, as the plaintiff was about to enter the "bus terminal," located at the corner of Second street S.W. and Dewalt avenue S.W. in the city of Canton, to become a passenger on a bus, she stepped into a manhole in the public sidewalk, near the entrance to the terminal, and dropped part way through the hole, thereby sustaining a fractured right wrist, bruises and other physical injuries.
On the witness stand, plaintiff described her mishap as follows:
"I was walking along the street, and suddenly as if the earth opened up under me, both feet went down and I kept going down until my right knee lodged and pitched me forward, and with a violent pitch backward I went down into the hole up on around my hips and was wedged fast in the hole with my left leg hanging perpendicular through the ceiling and my right leg doubled up against my chest."
It further developed from the evidence that one Presley S. Campbell, Sr., owned the premises where the bus terminal was located, and that the building thereon was erected in 1929, during his ownership.
At that time a circular manhole of the usual kind was opened through the sidewalk into a room or compartment underneath. Placed inside the opening at the top was a standard type metal ring having a lip or flange on which was seated a cast iron lid or cover, weighing about 50 pounds. When in place, this cover was even or flush with the sidewalk. The room under the manhole measured approximately 16 by 7 feet and the distance from the floor of the room to the manhole above was about 12 feet.
It appears that in 1939, Campbell leased the premises in question to The Penn-Ohio Bus Lines, which in turn promptly subleased a portion of the same to the defendant for restaurant purposes, including the room under the manhole.
This room was used by the defendant partly for storage and partly as a dressing room for women employees and was kept under lock and key.
Shortly after the premises were leased to The Penn-Ohio Bus Lines, a gas furnace was installed in the basement of the building to heat the entire structure. It was found that the furnace required additional air, so holes were drilled in the manhole cover to accomplish that result. Testifying on the subject, Campbell stated:
"We started to do it by a hand drill, and Thoma come and took the top out and took it to a machine shop and had them drilled in."
Thoma was then part owner of the Canton Terminal Restaurant. He testified that after the holes were drilled, the cover was replaced. "I sealed it after it was put back * * * poured black pitch all around it and sealed it."
The bill of exceptions discloses that plaintiff filed in the Court of Common Pleas of Stark county, three separate actions for damages based on negligence, one against Campbell, owner of the premises where the bus terminal was located, one against The Penn-Ohio Bus Lines, lessee of the premises, and one against the defendant herein. The cases against Campbell and the bus company were settled for the total amount of $6,000.
On the trial of the present action, there was no evidence as to how or when the manhole cover became displaced, or as to the length of time it had been displaced before plaintiff's fall, no evidence of any defect in the apparatus, patent or latent, no evidence that anyone had notice or knowledge of the displacement and no evidence that the manhole had been used by anyone for any purpose from the time the premises were leased to the bus company in 1939, except when the holes were drilled in the cover as described above.
Messrs. Sponseller Sponseller, for appellee.
Messrs. Burt, Carson, Lynch Miller, for appellant.
Plaintiff takes the position, as did the Court of Appeals according to its opinion, that the doctrine of res ipsa loquitur applies here — that the circumstances surrounding plaintiff's injuries made out a prima facie case for recovery against the defendant without direct proof of negligence on its part — and that a jury question was presented.
By several of its later decisions this court is now committed to the proposition that res ipsa loquitur is a rule of evidence which permits, but does not require, the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive management and control of the defendant and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury. See Fink v. New York Central Rd. Co., 144 Ohio St. 1, 56 N.E.2d 456, and cases cited therein.
Upon the basis that the thing giving rise to the injury must be shown to have been under the exclusive control of the one sought to be held in order for res ipsa loquitur to apply ( Mansfield Public Utility Service Co. v. Grogg, 103 Ohio St. 301, 304, 133 N.E. 481, 482; Glowacki, a Minor, v. North Western Ohio Ry. Power Co., 116 Ohio St. 451,157 N.E. 21, 53 A. L. R., 1486; City of Cleveland v. Pine, 123 Ohio St. 578, 582, 176 N.E. 229, 230, 74 A. L. R., 1224, 1226; 38 American Jurisprudence, 997, Section 300; 45 Corpus Juris, 1214, Section 781), this court made the following pronouncement in the second paragraph of the syllabus in the case of City of Cleveland v. Amato, 123 Ohio St. 575, 176 N.E. 227:
"The doctrine res ipsa loquitur does not apply to a misplaced manhole cover located in a sidewalk, and relieve plaintiff from the requirement of adducing proof of negligence of the municipality."
It appears from the statement of the facts in the case last cited that as the plaintiff was walking on a public sidewalk, she stepped on a metal disc covering a manhole in which a water meter was located. It turned under her weight and she was injured.
Judge Matthias, writing the opinion in that case, commented:
"The portion of the sidewalk occupied by this manhole was no more in the exclusive control of the city than any other portion of that walk or any other public walk of the city. Other persons could remove that cover, just as they might cause obstructions or make an opening or excavation in any portion of such walk. There was no evidence that the manhole cover was defective; indeed such evidence as was offered on the subject was to the contrary. Upon the facts disclosed the burden was not properly cast upon the city, nor could it properly be required to absolve itself from the charge of negligence by proving that the cover had been misplaced by others and that it had no notice, actual or constructive, of such condition."
In the instant case the defendant did not construct the manhole and, so far as the evidence shows, made no use of it, nor was it under any duty to maintain it. The only proved connection between the defendant and the manhole was that the defendant was the sublessee of the space beneath it. The manhole cover was in the public sidewalk and was not in the exclusive control of the defendant. Such manhole cover was traversed by the public and was subject to the contingencies of that use. It was liable to become displaced in different ways, without the fault or knowledge of the defendant. The character of plaintiff's misfortune and the circumstances attending it point as much if not more to its being the result of the intervention of an outside force or of a third person as to any negligence of the defendant.
Furthermore, as previously noted, the manhole cover and its appurtenances were not shown to have been in any wise defective. With the cover in position, the manhole offered no hazard and the defendant had neither actual nor constructive notice that the cover had been disturbed. It goes without saying that the defendant was not an insurer of the plaintiff's safety. According to common experience, a situation of the kind presented here does not speak for itself. See Gunning v. King, 229 Mass. 177, 118 N.E. 233; Beck v. Germantown Cricket Club, 228 Pa. 173, 77 A. 448; McLinn v. Noll, 65 S.D. 440, 274 N.W. 833.
This court is unanimously of the opinion that the doctrine of res ipsa loquitur is inappropriate to this case. The present case is one in which proof of the defendant's negligence was essential and, such proof being absent, the trial court properly directed a verdict for the defendant.
It follows that the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, SOHNGEN and STEWART, JJ., concur.