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Scovanner v. Toelke

Supreme Court of Ohio
Oct 17, 1928
119 Ohio St. 256 (Ohio 1928)


No. 21050

Decided October 17, 1928.

Negligence — Conclusions of trial court drawn from inferences from circumstantial evidence, not disturbed by Supreme Court, when — Defendant's allegation of intervening agency, unsupported by evidence, disregarded, when — Allegations of fact favorable to pleader, not evidence of their truth — Admissions against interest conclusive upon pleader in error proceedings — Presumption arises trial court applied proper rules of law, when — Res ipsa loquitur applies, when — Motor truck left thoroughfare and collided with adjoining building.

1. Where a court in the trial of a negligence case without the intervention of a jury draws inferences from circumstantial evidence adduced, this court will not disturb the conclusion reached unless such inferences were clearly unjustified.

2. Where in an action based on negligence the defendant by answer admits causing the damage and seeks to avoid liability by alleging that defendant exercised due care but that the negligence of a third party intervened which compelled defendant's action and resultant damage and such allegation of new matter is traversed by reply, and no testimony is offered by defendant in support thereof, it is not error for the trial court to disregard such allegation.

3. Allegations of fact in a pleading favorable to the pleader are not evidence of their truth, but any admissions therein against interest are conclusive upon the pleader in an error proceeding.

4. Where a trial court hears and determines a cause without the intervention of a jury and does not make separate findings of fact and conclusions of law, and no request is made therefor, and any evidence is adduced to support the conclusions reached under proper rules of law applicable thereto, a reviewing court will presume that all proper rules of law were applied.

5. Where a motor driven vehicle is being operated by the owner along thoroughfare and leaves such thoroughfare and collides with and damages an adjoining building, and no other testimony is adduced to prove negligent operation of the truck, the res ipsa loquitur doctrine applies, and, in the absence of an explanation on the part of the defendant showing due care in the operation of the automobile, it is not error for the trial court hearing the cause without the intervention of a jury to render judgment against the defendant.

ERROR to the Court of Appeals of Hamilton county.

Joseph H. Toelke, the owner of a building on the northeast corner of the intersection of Twelfth and Sycamore streets in Cincinnati, Ohio, brought an action in the municipal court of Cincinnati against Scovanner for damages done to his building by a truck owned by Scovanner and driven by his agent. The petition alleged that the truck was operated in a careless and negligent manner, at a great and excessive speed, and without proper control. The answer admitted the ownership and operation of the truck and its collision with the building, but stated that the truck was deflected from its course by reason of another automobile negligently striking the front part of the truck at the intersection. A reply was filed making specific denial of the new matter in the answer. At the trial, plaintiff introduced evidence of the damage to the building and of the amount of the damage, but no eyewitness was produced who saw or could describe the manner in which the truck came into collision with the building. The case was heard by the court without the intervention of a jury, and at the conclusion of plaintiff's testimony a motion was made by defendant for a directed verdict, which was overruled by the court, and the defendant offering no testimony, judgment was entered for the plaintiff. The judgment was affirmed on error by the court of common pleas, and later by the court of appeals of Hamilton county. The cause has been admitted to this court on allowance of motion to certify the record.

Mr. Henry J. Weller, for plaintiff in error.

Messrs. Heilker Heilker and Mr. Thomas L. Michie, for defendant in error.

The sole question argued in this court is whether the municipal court erred in overruling the motion of defendant for judgment in his favor at the close of plaintiff's testimony. The issue is whether plaintiff sustained the burden imposed upon him to prove defendant's negligence in the operation of the truck, as alleged in the petition.

The duty resting upon this court, on a review of the record, is to ascertain whether there is any evidence tending to prove defendant's negligence in the operation of the truck. Negligence is never presumed, and the burden of proving it is always imposed upon the party asserting it. This burden is met by introducing testimony sufficient to cause the court to believe it probable that the truck was negligently operated. Such testimony need not be that of an eyewitness. The facts and circumstances may be such as to raise an inference of negligent operation. The defendant admitted in the answer that the damage was done through agencies under his control, and sought to avoid the effect of that admission by further stating that the course of the truck was deflected by the negligent operation of another machine owned by another party. Such new matter being denied, and no evidence being offered by the defendant, the case is stripped of that feature. It only remains to determine as a proposition of law in this error proceeding whether the unexplained driving of a truck over the sidewalk and into the corner of a building raises an inference of negligence on the part of the driver of the truck which renders its owner liable to respond in damages. The trial court drew that inference and rendered judgment. There is no conflicting evidence to be weighed, and the weight of the evidence is therefore not involved. On the other hand, it is not the duty of this court in this error proceeding to place itself in the position of the trial court, or to exercise an independent judgment as to whether this court on a reading of the record would draw the same inferences. That was the duty of the trial court in the first instance, and, on review, this court will not disturb its conclusions, unless they were clearly unjustified.

The allegations in the answer to the effect that the truck was being operated with care, and that the damage was caused by the negligence of the driver of the other car, are not in any sense evidence. Those allegations in the pleading not being evidence, and the defendant offering no testimony to support them, the trial court was bound to ignore them. It vaguely appears in the testimony that there was another car in collision with the truck. But it does not even remotely appear that the truck was operated carefully and the other car negligently. This truth is the more manifest because the truck necessarily had a driver, and the question of care or negligence rested with him. The defendant neither called him nor accounted for his absence.

There is another theory of this case, which was not stressed in argument. Counsel for plaintiff did not invoke the doctrine of res ipsa loquitur. He was of the opinion that upon the authority of Glowacki v. Northwestern Ohio Ry. Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A. L. R., 1486, the answer precluded him from invoking the doctrine. This conclusion was reached upon the well-known theory that the doctrine does not apply where it appears that there was another equally efficient proximate cause. There was, however, only one cause of injury, and that was the collision of the truck with the building. While there was another intervening agency alleged in the answer, there was no testimony to support it, and the situation was therefore as though it had never been alleged. It is not necessary to plead the doctrine of res ipsa loquitur. Beeler v. Ponting, 116 Ohio St. 432, 156 N.E. 599. Where the facts and circumstances as developed by the evidence make the rule applicable, and where requested so to do, it becomes the duty of the court to charge the jury thereon, and a refusal would amount to reversible error. In the instant case the court tried the case without the intervention of a jury, and no request was made for separate findings of fact and conclusions of law. We are, therefore, not able to determine what rules of law were applied by the court in reaching a conclusion. It will be presumed, however, that the court applied all proper applicable rules. The first syllabus of the Glowacki case is applicable and decisive of this error proceeding:

"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."

The truck was the instrumentality which caused the injury. It was under the exclusive management and control of the defendant, and the accident occurred under circumstances where, in the ordinary course of events, it would not have occurred if ordinary care had been observed. The defendant could have explained the interference of the other automobile, and if the explanation had been satisfactory to the trial judge a verdict would have been rendered in defendant's favor. The third syllabus of the Glowacki case is likewise applicable:

"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."

This court cannot say upon a review of this record that the inference drawn by the trial court was not justified.

Judgment affirmed.


Summaries of

Scovanner v. Toelke

Supreme Court of Ohio
Oct 17, 1928
119 Ohio St. 256 (Ohio 1928)
Case details for

Scovanner v. Toelke

Case Details


Court:Supreme Court of Ohio

Date published: Oct 17, 1928


119 Ohio St. 256 (Ohio 1928)
163 N.E. 493

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