Opinion
No. 25956
Decided November 18, 1936.
Negligence — Storekeeper to keep storeroom in reasonably safe condition — Rea ipsa loquitur a rule of evidence and not of liability — Rule inapplicable where customer stumbled over sewing-stool in aisle, when — Proof necessary of sole and exclusive control by storekeeper.
1. A storekeeper owes to a customer shopping in his store the duty to exercise ordinary care to have and keep his storeroom in a reasonably safe condition. ( J.C. Penny Co., Inc., v. Robison, 128 Ohio St. 626, approved and followed.)
2. Res ipsa loquitur is a rule of evidence and should not be expanded into a rule of liability.
3. Merely proving that a sewing-stool or foot-stool was the property of the storekeeper and that a customer stumbled over it while walking along one of the aisles of the store, proximately resulting in her injury, is not sufficient to invoke the rule of res ipsa loquitur.
4. In order to invoke the rule of res ipsa loquitur in such case it is necessary that the party injured prove that the instrumentality causing the injury was at the time of the injury in the sole and exclusive control of the defendant.
APPEAL from the Court of Appeals of Mahoning county.
This is an action for damages for personal injuries, brought by Nellie R. Sherlock against The Strouss-Hirshberg Company, a corporation conducting a department store in the city of Youngstown, Ohio. Inasmuch as our new code of appellate procedure provides that the style of the case does not change, the parties will be referred to in the statement of facts and in the opinion as plaintiff and defendant, in accordance with the style of the case in the trial court.
For her cause of action plaintiff alleges the corporate existence of defendant and that it kept its place of business open during business hours, with an invitation to the general public to enter, inspect and purchase its merchandise. She states that on December 15, 1932, at about 4:20 o'clock in the afternoon, she was a patron of the defendant in its store and had occasion to make purchases at a square counter and a notion counter near by; that while in the act of walking from the square counter toward the notion counter she suddenly, unexpectedly and without warning stumbled over a stool and was thrown with great force and violence to the marble floor, thereby sustaining injury.
She claims that defendant carelessly and negligently caused and permitted the stool, which was one foot in height, to be placed and remain in the aisle in question, directly in the path of persons having occasion to traverse the aisle; that the presence of the stool, on account of its low height, and on account of the shadows from the counter, was not readily discernible to her and she was at the time engrossed in shopping.
She further claims that defendant wholly failed and neglected to give her any notice or warning of the presence of the stool.
She specifically alleges that defendant was negligent in the following respects: (1) In causing and permitting the stool to be and remain in the aisle in such position as to obstruct the passage of plaintiff and others therein; (2) in failing and neglecting to remove the stool from the aisle and thus prevent plaintiff from stumbling thereon; (3) in failing and neglecting to give plaintiff any notice or warning that the stool was in the aisle and obstructing same; and that by reason of the negligence of defendant in these respects and as a proximate result thereof, she was injured as claimed by her in her petition.
The defendant, The Strouss-Hirshberg Company, for answer admits its corporate existence and that it maintains and operates a department store in the city of Youngstown, Ohio, at the location claimed by plaintiff; that its doors were open during the usual business hours for the purpose of permitting the general public to enter, inspect and purchase general merchandise therein displayed for sale. It further admits "that on or about the 15th day of September, 1933," [ sic] at about 4:20 o'clock, plaintiff was in defendant's store and while there fell to the floor.
The defendant specifically denies that plaintiff fell by reason of any negligence on its part, or that the injuries were of the kind or to the extent alleged in her petition.
For its first defense defendant denies each and every other allegation made by plaintiff except such as are specifically admitted.
By way of second defense, defendant alleges that plaintiff was guilty of contributory negligence, in that she failed to use her sense of sight for her own protection.
By way of reply, plaintiff denies each and every statement contained in defendant's answer that are not admissions in her petition.
Upon these issues the case proceeded to trial. The testimony in the case does support the material allegations of the petition of plaintiff, except as to who caused the stool to be in the aisle where plaintiff came in contact with and stumbled over it.
No photograph or plat of the locus of the accident is in the record.
Plaintiff is the only witness who testified as to the surroundings at the time of her alleged injury. She testified, in substance, as follows:
The accident occurred in what I call the notion department at the last counter to the rear end of the store. It is built all around. It is not like the counters near the wall. It is built clear around and the saleslady is in the center. It is not exactly square but on the order of a square. It is enclosed clear around but is not circular. It was a display counter. Facing the display counter to the north the bakery counter was to my left, the width of an aisle, not less than six feet in width, I imagine. There was quite a number of people in the store. It seemed quite busy. I went to the bakery counter and bought some raisin bread and came back to this counter to ask for long-eyed needles. I kept talking to the clerk and she to me and as she started to come out from under the counter I went right along walking and my feet became tangled up with what I thought was a foot-stool in the aisle. It was low like a little sewing-stool would be. Four legs on it and as I recall covered with cloth and whether that would be a foot-stool or a sewing-stoool — they are all made on pretty much the same order. I fell over it face downward. I saw it when they were putting it back again on the counter. Not on top. On this counter there is a piece of board built comes out on the bottom and this stuff is piled on it. There were many articles there but this stool was the only one in the aisle.
At the conclusion of plaintiff's testimony, defendant moved the court to arrest the testimony from the consideration of the jury and direct a verdict for defendant. This motion the court overruled, and here both plaintiff and defendant rested their case.
Thereupon the case was submitted to the jury and a verdict was returned for plaintiff. Appeal was prosecuted to the Court of Appeals of Mahoning county to reverse the judgment of the trial court; but the Court of Appeals affirmed such judgment, and appeal is prosecuted to this court to reverse the finding and judgment of the Court of Appeals.
It is the theory of plaintiff that, having proven her case as pleaded, she is entitled to recover. It is the contention of defendant that the case is neither sufficiently pleaded nor proven.
Mr. John Ruffalo, for appellee.
Messrs. Manchester, Ford, Bennett Powers and Mr. M.S. Wilkinson, for appellant.
Plaintiff claims that she has pleaded and proven:
(1) The ownership of the store; (2) an object causing defect in the aisle thereof; (3) the object being a sewing-stool, being at or near the sewing and thread counter; (4) after the stool caused plaintiff to fall, it was put back on the sewing and thread counter, where they were on display; (5) that the sewing-stool obstructed the aisle and safe passageway of plaintiff, and (6) that the stool was at the counter where the saleslady was pursuing her employment, and that it was a part of or belonged to the counter over which she had charge, supervision and control.
She further claims that, having pleaded and proven these facts, she has presented a prima facie case and, in the absence of any explanation by defendant as to the presence of the stool in an aisle of the store at the time in question, her judgment should be affirmed.
The defendant naturally claims that plaintiff failed to present a prima facie case or even such a case as invokes the doctrine of res ipsa loquitur.
Our first concern is the duty which defendant owed plaintiff at the time and place of the accident. This court is committed to the law as announced in the first paragraph of the syllabus in the case of J.C. Penny Co., Inc., v. Robison, 128 Ohio St. 626, 193 N.E. 401, wherein it was held that:
"A storekeeper owes to a customer, shopping in his store, the duty to exercise ordinary care to have and keep his storeroom in a reasonably safe condition."
We find it necessary to repeat that this rule of law does not make the storekeeper an insurer. The stool in this case was the proximate cause of injury. It was not an instrumentality used in the conduct of the store. It was an article of merchandise, displayed for sale. Doubtless its proper place when not being exhibited to a prospective customer was on the shelf, to which, according to the record, it was returned after the accident. Of course, had it been on the shelf when plaintiff was walking through the aisle there would have been no injury. But it was in the aisle. Who placed it there? As to how long it had been in the aisle need not be considered, as the record is silent on that proposition. The record is likewise silent as to the ownership of the stool, but inasmuch as the uncontradicted testimony shows that it was returned, after the injury, to a shelf on the outside of the display counter where there were other like articles of merchandise, the inference that it belonged to defendant is neither illogical nor unreasonable.
There is no testimony in the record to the effect that defendant, its servants or employees placed the stool in the aisle; hence if plaintiff is to recover in this case she must recover upon the theory of res ipsa loquitur. It is one of the few Latin phrases retained in the law of negligence in Ohio. Literally translated it means, "The thing itself speaks"; but the courts and lawyers of the state have given to it a more liberal translation, namely, "The thing speaks for itself."
We call it a rule of evidence — and so it is. It must remain a rule of evidence, and by no stretch of the imagination should it be expanded into a rule of liability.
It is a salutary rule in some cases. The derailment of a passenger train, for instance. The injured passenger has no means of knowing the cause of the derailment. He pleads and proves that the train and tracks were under the sole and exclusive control of the railway company, that there was a derailment, and that such derailment was the proximate cause of his injuries. He has made his case, and the law, under the rule of res ipsa loquitur, says to the railway company: "Explain this derailment, remove this inference of negligence, or respond in damages." If under the circumstances the railway company can show that the derailment was caused by an obstruction placed on its tracks by a stranger to the company, no recovery can be had against it, as the passenger's injury was proximately caused by an instrumentality over which it had no control.
The case before us is in no wise comparable to a derailment case. The doctrine of res ipsa loquitur has been considered at length by the courts of Ohio, and it would shed no light on this case to enter into a discussion of those cases, as they are not in harmony, particularly on the proposition as to whether the intervention of the doctrine of res ipsa loquitur creates a presumption of negligence or an inference of negligence.
We may say, in passing, that the Ohio cases dealing with the doctrine of res ipsa loquitur are carefully and ably discussed in 29 Ohio Jurisprudence, Section 153 et seq. It will be noted from this collation that the weight of authority is to the effect that an inference arises rather than that a presumption of negligence is thereby created, and that is the rule we now adopt.
The rule as announced in the first paragraph of the syllabus in the case of Glowacki v. North Western Ohio Ry. Power Co., 116 Ohio St. 451, 157 N.E. 21, has been followed for the past decade and we adhere to it, namely:
"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."
A more succinct rule is stated in the opinion in the case of St. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St. 423, 151 N.E. 323, where on page 433 it is said:
" 'All that the rule of res ipsa loquitur means is that the circumstances involved in or connected with an accident may be of such unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having the possession or control of the article or thing which caused the injury, because in the absence of explanation, this is the only fair and reasonable conclusion.' "
In order to return a verdict for plaintiff, the jury was obliged to infer from the facts proven that defendant, its servants or employees, placed the stool in question in the aisle where plaintiff stumbled over it.
To warrant such inference, it was necessary for plaintiff to prove that defendant had sole and exclusive control over it at all times. If it is just as reasonable to infer that a customer, or the child of a customer, or an interloper of any character, placed the stool in the aisle, as it is to infer that defendant, its servants or employees placed it there, then plaintiff cannot invoke the doctrine of res ipsa loquitur and she must fail in this action.
Let us apply the rule of reason to the facts as they appear in this case.
The accident occurred on December 15, 1932, during the Christmas shopping season. Many customers were in the store at the time. The clerks were busy. The stool in question was an article of merchandise. It was kept on a shelf on the display counter. This we infer from the fact that plaintiff testified it was returned to this shelf after the accident, and that there were similar articles of merchandise on this shelf. This display counter was in the form of a hollow square. The lady attendant occupied the inside or hollow of the square, and customers approached her from the four sides thereof. It was completely enclosed. The shelf on which the stool was displayed was on the outside where the customers congregated. The stool was readily accessible to the customers but not to the clerk. The stool found its way into the aisle. If an employee placed it in the aisle, it must have been the young lady who had charge of the display counter. For aught that the record discloses, no other employee had any business at that particular counter; besides, they were all busy with their own customers. If the young lady at the display counter placed the stool in the aisle, she had to come out from under the display counter. No one saw her outside of the display counter prior to the accident. Plaintiff says she did come out from under the counter just about the time she tripped and fell. The lady clerk did not put the stool in the aisle then or plaintiff would have seen her do it and would have so testified. The clerk was going with plaintiff to another counter to get some long-eyed needles.
Now, under all the circumstances, who placed the stool in the aisle? Is it not just as reasonable to infer, under all the circumstances of this case, that a customer, a child or an interloper placed it there as it is to infer that defendant, its servants or employees so placed it?
The case of S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, first paragraph of the syllabus, reiterates and re-emphasizes the doctrine that owners and lessees of stores are not insurers against all accidents and injuries to patrons while in their stores. We are impressed with the logic found on page 724 of that opinion, namely:
"It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail."
The dictates of ordinary care do not impose unusual and unreasonable burdens. The defendant in the instant case was not required to employ a force of inspectors to watch customers at all times to see that they placed no obstacles in the aisles of the store. The employees were charged with the duty to exercise ordinary care to see that no obstructions were placed in the aisles; but they could not be required to be both salesmen and watchmen at any and all times.
"The maxim of res ipsa loquitur relates merely to negligence prima facie and is available without excluding all other possibilities, but it does not apply when there is direct evidence as to the cause, or when 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." 29 Cyc., 624.
Plaintiff ignores the doctrine of res ipsa loquitur in words, but does she not invoke it in theory? She claims that she submitted a prima facie case to the jury and was accordingly entitled to the verdict she obtained. We adopt her definition of a prima facie case, namely:
"Prima facie case is, one which is apparently established by evidence adduced by plaintiff in support of his case up to the time such evidence stands unexplained and uncontradicted."
Plaintiff further claims that this is not a case necessarily arising under the doctrine of res ipsa loquitur, but rather one established by prima facie evidence, which includes all the facts and circumstances tending to place responsibility upon the defendant.
We cannot agree that plaintiff presented a prima facie case. She did not prove who was responsible for the stool being in the aisle; but from the fact that it was there she insists the jury had the right to infer that defendant was responsible for its being there.
Such proof was not sufficient to put defendant upon explanation under the theory of res ipsa loquitur.
The court erred in overruling the motion of defendant for a directed verdict at the close of plaintiff's case, and the Court of Appeals erred in affirming the judgment of the Court of Common Pleas.
The judgments of the Court of Common Pleas and Court of Appeals are reversed, and judgment is rendered for the defendant, The Strouss-Hirshberg Company.
Judgment reversed.
WEYGANDT, C.J., JONES, MATTHIAS and ZIMMERMAN, JJ., concur.
WILLIAMS, J., not participating.