Court of Appeals of OhioMar 12, 1928
29 Ohio App. 522 (Ohio Ct. App. 1928)
29 Ohio App. 522163 N.E. 917

Decided March 12, 1928.

Negligence — Automobile passenger injured through driver losing control of machine — Res ipsa loquitur applies — Inference of driver's negligence and accident not explained — Jury charged upon res ipsa loquitur although phrase not used by court — Verdict for plaintiff sustained by evidence.

1. In action for injuries to occupant of automobile, resulting from conduct of driver who permitted steering wheel to escape her control throwing machine against poles at street corner, inference of driver's negligence arose under res ipsa loquitur doctrine, requiring submission of issue of negligence to jury, where accident was not explained.

2. In action against driver of automobile for injuries to occupant when car struck poles due to driver's loss of control, instruction that jury should consider whether evidence and reasonable inferences drawn therefrom showed negligence submitted inference of negligence under res ipsa loquitur doctrine, though expression "res ipsa loquitur" was not used.

3. In action for injuries to occupant of car resulting when driver lost control and the car collided with poles, evidence, under res ipsa loquitur doctrine, held to sustain jury's verdict for plaintiff.

ERROR: Court of Appeals for Hamilton county.

Messrs. Roettinger Street, for plaintiff in error.

Messrs. Pogue, Hoffheimer Pogue, for defendant in error.

Defendant in error, Karl G. Zwick, brought a suit for personal injuries against the plaintiff in error, Amanda J. Zwick, in the court of common pleas of Hamilton county.

The third amended petition alleged that the defendant, who is the plaintiff in error here, was the owner of an automobile and was operating the same on and along Ludlow avenue, Cincinnati, Ohio, and that the plaintiff herein was riding in said automobile as a passenger; that the defendant suddenly and without warning carelessly and negligently operated the steering wheel of said automobile, or permitted the steering wheel to escape her control, so that the machine turned to one side and was thrown against and collided with four poles erected on the southeast corner of Ludlow avenue and Whitfield street; and that by reason of the negligent and careless action of the defendant in managing and operating the machine plaintiff was thrown violently through the windshield of said machine, whereby, and as a result whereof, plaintiff received multiple bruises about his body and extensive lacerations about his forehead and face, which said lacerations have left plaintiff permanently scarred and disfigured.

The answer admitted the ownership and the operation as alleged, admitted that the plaintiff was riding in the automobile at the time, but denied that she was in any manner careless or negligent in the operation of the automobile, and followed with a general denial of the other allegations.

The case went to trial, and resulted in a verdict for the plaintiff, defendant in error here.

Error is claimed in the overruling by the trial court of the motion for a directed verdict for the defense, made at the close of plaintiff's evidence and at the close of all the evidence, and error is claimed in the general charge.

The plaintiff at the trial proved the ownership of the automobile, the operation thereof by the defendant, and the happening of the accident resulting in his injuries.

Plaintiff was unable to show what caused the turning of the machine which threw it against the poles, causing the injuries. He, together with the defendant in the case, plaintiff in error here, were the only witnesses to the accident.

The defendant failed to produce evidence explaining the cause of the accident, or to contradict plaintiff's evidence. The other evidence in the case was medical testimony concerning the injuries.

We are of opinion that the facts shown by the evidence, uncontradicted and unexplained, are sufficient to warrant the inference that the loss of control of the automobile, the collision with the poles, and the resulting injuries, were caused by the negligence of the defendant in the operation of her automobile. In other words, the situation calls for the application of the doctrine of res ipsa loquitur.

The machine was owned and operated by the defendant. The accident was an unusual happening, and, in the absence of any explanation, the jury was justified in inferring that the accident was caused by the negligence of the defendant.

The trial court in the charge to the jury did not use the expression res ipsa loquitur, but did charge the jury that it should consider all the evidence which had been offered in the case, and consider whether that evidence, and any natural, probable, and reasonable inferences which might be drawn from the evidence, established or proved the defendant guilty of negligence; and that if such evidence proved the defendant guilty of negligence, which negligence resulted in injuries to the plaintiff, she was liable to the plaintiff. So that these inferences were submitted to the jury although not under the technical term. See Cleveland-Akron Bag Co. v. Jaite, 112 Ohio St. 506, 148 N.E. 82; also Feiss v. Hensch, 28 Ohio App. 42, 162 N.E. 456.

Our conclusion is that the trial court was correct in overruling the motion for an instructed verdict; that there was sufficient evidence under the maxim res ipsa loquitur to sustain the verdict of the jury; and that no error, prejudicial to the defendant, plaintiff in error here, intervened.

Judgment affirmed.

MILLS, J., concurs.