Opinion
No. 75-213
Decided January 14, 1976.
Negligence — Falling objects — Res ipsa loquitur — Application of doctrine — Instrumentality under defendant's exclusive control, when.
APPEAL from the Court of Appeals for Hamilton County.
Sometime prior to July 19, 1967, appellee, Mobil Oil Corporation, doing business as Mobil Chemical Company, hired the Newberry Construction Company to repair a portion of railroad track located alongside a loading silo at appellee's plant in Fernald, Ohio. One of Newberry's employees sent to the plant to help repair the track was Sam Walker, appellant herein.
During the course of the project on the above date, a large rubber hose and an attached piece of rope broke away from the side of the silo and struck appellant, knocking him across the tracks and partially covering him with a white chemical, which had been inside the hose.
Appellant filed a complaint in the Court of Common Pleas of Hamilton County, seeking damages for alleged injuries to his back and legs, medical expenses, and lost wages.
At trial, appellee stipulated that it owned and operated the plant at which the accident occurred. Witnesses for appellant testified to the following: That immediately after the accident, employees of appellee cleaned up and removed the hose, rope and chemicals; that Newberry's contract with appellee did not call for any of Newberry's employees to go onto the silo; that before the incident, the hose, rope and chemicals were located approximately 30 to 40 feet above the ground; and that no one was seen on the silo immediately before or after the items fell upon appellant.
At the close of appellant's case, appellee moved for a directed verdict, asserting in part that appellant had failed to present sufficient evidence of appellee's exclusive control of the instrumentality causing the alleged injuries to allow the case to go to the jury under the doctrine of res ipsa loquitur. The motion was overruled.
Appellee presented no testimony or evidence in defense, and made no attempt to explain the circumstances surrounding the fall of the objects.
Appellant than requested that a charge on res ipsa loquitur be given to the jury, to which appellee made no objection. The court's charge included instructions on the doctrine, and, thereafter, the jury returned a verdict for appellant in the amount of $50,000.
Appellee filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The motion was granted, and the judgment for appellant set aside. In explaining the basis of its decision, the trial court stated, in part:
"In order for plaintiff to recover under the doctrine of res ipsa loquitur plaintiff must prove that the instrumentality or the premises were in the exclusive possession and control of the defendant and the failure of plaintiff to offer said proof or of defendant to admit possession and control makes the doctrine of res ipsa loquitur inapplicable."
The judgment was affirmed by the Court of Appeals, and the cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Roeller Panos and Mr. Robert K. Roeller, for appellant.
Messrs. Cohen, Todd, Kite Spiegel and Mr. James Q. Doran, for appellee.
The sole issue herein is whether the doctrine of res ipsa loquitur was applicable under the evidence presented to the trial court.
In Ohio, it is well established that the doctrine of res ipsa loquitur is a rule of evidence which permits the trier of fact to draw an inference of negligence on the part of the defendant from the circumstances surrounding the injury to plaintiff; the weight of that inference, as well as the weight of the explanation offered to meet such inference, being for the determination of the trier of fact. See Glowacki v. North Western Ohio Ry. Power Co. (1927), 116 Ohio St. 451, 157 N.E. 21; Fink v. New York Central Rd. Co. (1944), 144 Ohio St. 1, 56 N.E.2d 456. To warrant application of the rule, however, there must be evidence which establishes that (1) the instrumentality causing the injury was under the exclusive management and control of the defendant, and (2) that the accident occurred under such circumstances that in the usual course of events it would not have occurred if ordinary care had been observed. Glowacki v. North Western Ohio Ry. Power Co., supra; Fink v. New York Central Rd. Co., supra; Renneckar v. Canton Terminal Restaurant (1947), 148 Ohio St. 119, 73 N.E.2d 498; Soltz v. Colony Recreation Center (1949), 151 Ohio St. 503, 87 N.E.2d 167; Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 262 N.E.2d 703.
The second requirement above stated is not at issue in the case at bar, but appellee contends that, as a matter of law, there is insufficient evidence in the record that the instrumentality which fell upon appellant was under appellee's exclusive control.
In his oral argument to this court, counsel for appellee candidly stated that Mobil Oil was, in fact, in exclusive control of the premises and of the instrumentalities which fell upon appellant. Since this acknowledgement clearly was dehors the record, it played no part in the decision herein. However, it should serve as an example to counsel for appellant that the simple and inexpensive utilization of discovery by written interrogatory would have constituted a valuable service to his client, and quite probably would have avoided this lengthy appellate process.
An examination of the record reveals that the following indicia of control were before the trial court: Appellee stipulated that it owned and operated the plant at Fernald; the hose, rope and chemicals, prior to falling, were located at a point on the silo well above ground level; the owner of Newberry Construction Company testified that its contract with appellee did not call for his employees to do anything above the ground level; immediately after the accident, employees of appellee cleaned up and removed the fallen objects.
It is our finding that the above factors establish such exclusive control by appellee as to permit application of the doctrine of res ipsa loquitur.
Employment of the doctrine in this case is further warranted when it is considered that res ipsa loquitur originated in the law of necessity. That is, the justice of the doctrine rests upon the foundation that the true cause of the occurrence, whether innocent or culpable, is within the knowledge or access of the defendant and not within the knowledge or access of the plaintiff. Fink v. New York Central Rd. Co., supra ( 144 Ohio St. 1) . The circumstances surrounding this unexplained accident bring it within the historical rationale of the doctrine.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas with instructions to enter final judgment upon the jury's verdict for appellant.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.