Examples to Show How Different and Better Dean's Law Dictionary Has Become.

Latin. The thing speaks for itself. We start with the exception to the rule so it stays where it belongs, at the top of your requirements. The doctrine of res ipsa loquitur does not rest upon established facts. It does not apply where there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending upon the occurrence appear.' 46 A.L.R.2d, 110, 111.


The doctrine of res ipsa loquitur, meaning 'the thing or transaction speaks for itself,' permits a finding of negligence from the circumstances surrounding the injury. Speiser, The Negligence Case: Res Ipsa Loquitur, § 1:1 at 2-3 (1972). See also, Crawford v. Rogers, 406 P.2d at 193. It does not allow negligence to be established from the mere fact of injury itself. Speiser, supra Note 36 at 2-3. The doctrine, where applicable, is a bridge, dispensing with the requirement that a plaintiff specifically prove breach of duty, [Crawford v. Rogers, 406 P.2d at 193.] once that duty and proximate cause have been established.


Sec. 328 D of the Restatement of Torts (Second) (1965) provides: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. The Restatement comment pertaining to § 328 D(1) (b) reads: Eliminating other responsible causes. It is never enough for the plaintiff to prove that he was injured by the negligence of some person unidentified. It is still necessary to make the negligence point to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case. Again, however, the plaintiff is not required to exclude all other possible conclusions beyond a reasonable doubt, and it is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Id. at 160. 


Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts § 40, at 257 [5th ed]), and it is appropriately charged when, 'upon 'a commonsense appraisal of the probative value' of the circumstantial evidence, … [the] inference of negligence is justified' (George Foltis, Inc. v City of New York, 287 NY 108, 115). Submission of res ipsa loquitur, moreover, merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed--but not compelled--to draw the permissible inference (Dermatossian v New York City Tr. Auth., 67 NY2d at 226, supra; Prosser and Keeton, Torts § 40, at 258 [5th ed]). In those cases where 'conflicting inferences may be drawn, choice of inference must be made by the jury' (George Foltis, Inc. v City of New York, 287 NY at 118, supra). 


The modern trend tends toward allowance of experts to ' 'bridge the gap' between the jury's common knowledge and the uncommon knowledge of experts' by testifying in medical malpractice cases as to what is common knowledge within their specialized fields (Connors v University Assocs. in Obstetrics & Gynecology, 4 F3d 123, 128 [2d Cir 1993]; see, e.g., Locke v Pachtman, 446 Mich 216, 230, 521 NW2d 786, 793 [1994]; Mireles v Broderick, 117 NM 445, 447-449, 872 P2d 863, 865-867 [1994]; Buckelew v Grossbard, 87 NJ 512, 525-528, 435 A2d 1150, 1157-1158 [1981]; Walker v Rumer, 72 Ill 2d 495, 500-502, 381 NE2d 689, 691 [1978]; Kerr v Bock, 5 Cal 3d 321, 323-325, 486 P2d 684, 686 [1971]; see also, Restatement [Second] of Torts § 328 D, comment d [expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the necessary inference]; Prosser and Keeton, Torts §§ 39, 40, at 247, 256-257 [5th ed] [same]). Other jurisdictions disallow the application of res ipsa loquitur in medical malpractice cases if expert testimony is necessary to provide the requisite foundation (see, e.g., Haddock v Arnspiger, 793 SW2d 948, 951 [Tex 1990], reh overruled [Sept. 6, 1990]; Wasem v Laskowski, 274 NW2d 219, 225 [ND 1979]; Anderson v Gordon, 334 So 2d 107, 109 [Fla Dist Ct App 1976]; Todd v Eitel Hosp., 306 Minn 254, 260-261, 237 NW2d 357, 361-362 [1975]; see also, Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, 82 Va L Rev 325 [1996] [criticizing application of res ipsa loquitur in medical malpractice cases]). 


Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiff's body (see, e.g., Connors v University Assocs. in Obstetrics & Gynecology, 4 F3d at 127, supra; Haddock v Arnspiger, 793 SW2d at 951, supra; Wasem v Laskowski, 274 NW2d at 225, supra; Todd v Eitel Hosp., 306 Minn at 260, 237 NW2d at 361, supra; Restatement [Second] of Torts § 328 D, comments d, g, illustration 9). As explained by Prosser and Keeton in their classic treatise: 'There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge or implement in the patient's interior, … the thing speaks for itself without the aid of any expert's advice.' (Prosser and Keeton, Torts § 40, at 256-257 [5th ed] [emphasis added].) 


Under the rule of res ipsa loquitur, a jury may draw a permissible inference of negligence from the circumstances surrounding certain accidents. 204 A.2d 874. In a sense the rule, which means 'the thing speaks for itself,' Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288, 471 A.2d 25 (1984), recognizes that an inference of negligence that will support a verdict in a negligence action may be drawn from circumstantial evidence, Lorenc v. Chemirad Corp., 37 N.J. 56, 70, 179 A.2d 401 (1962); accord Fields v. Morgan, 39 Md.App. 82, 87 n. 5, 382 A.2d 1099, 1102 n. 5 (1978) ('res ipsa loquitur is nothing more than a label that is attached to certain situations where the mere occurrence of an accident furnishes enough circumstantial evidence to allow a jury to draw an inference of negligence'); 2 F. Harper, F. James, & O. Gray, The Law of Torts § 19.5 at 27 (1986) (Harper, James, & Gray).


Application of the rule depends on satisfaction of three conditions: (1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agent which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person. [Lorenc, supra, 37 N.J. at 70, 179 A.2d 401.]


In certain cases, and in the absence of direct or circumstantial evidence, and as a matter of public policy, the plaintiff will be permitted to plead the probability of negligence. The three elements which must be present in res ipsa loquitur are: 1. The accident must be of a type that normally would not occur without negligence on someone's part. 2. Neither the plaintiff nor any third person contributed to or caused the plaintiff's injuries. (This maintains the integrity of the probability of the negligence pointing to the defendant). 3. The source of indicated negligence falls within the scope of duty owed to the plaintiff by the defendant. This is usually shown by the exclusive control of the instrument causing the injury or by an inability to identify a specific source of harm. It is usually found in groups responsible to the plaintiff and not willing or unable to divulge the actual source of harm. The results when the three elements of res ipsa loquitur are met are as follows: Majority: The trier of fact may accept res ipsa loquitur as an inference of negligence; Some courts gives res ipsa loquitur the effect of a rebuttable presumption, shifting the burden of going forward with the evidence to the defendant; Some courts treat res ipsa loquitur as a disappearing presumption that can be dispelled by counter-evidence.


The doctrine of res ipsa loquitur is utilized only in cases with incomplete factual descriptions. Evans v. Buchner, 386 P.2d 836, 837 (Alaska 1963). In Crawford v. Rogers, 406 P.2d 189, 193 (Alaska 1965), the court said: 'Res ipsa loquitur means 'the thing speaks for itself.' As a rule of law in an action involving an accident where a claim of negligence is made, it permits a jury, on the basis of experience or common knowledge, to infer negligence from the mere occurrence of the accident itself. The jury is permitted to conclude that such an accident would not ordinarily occur unless someone had been negligent.'


As the Hawaii Supreme Court said in Guanzon v. Kalamau, 48 Haw. 330, 402 P.2d 289, 291 (1965), 'The doctrine, where applicable, is a procedural device which operates to shift the burden of going forward with the evidence to the defendant without relieving plaintiff of the burden of proof. It relieves the plaintiff from showing any particular acts of negligence and places on the defendant the burden of explaining that the accident did not occur from want of care on his part. 61 C.J.S. Motor Vehicles § 511(3) b, p. 205.' The New Jersey Supreme Court in Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 141 A.2d 301, 306-307, 66 A.L.R.2d 680 (1958) stated: 'Res ipsa loquitur symbolizes a permissible presumption of negligence from the plaintiff's proof, that is to say, an allowable inference of the defendant's want of due care where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.


The rule has its foundation in probability and the procedural policy of placing the onus of producing evidence upon the party who is possessed of superior knowledge or opportunity for explanation of the causative circumstances. The presumption arises where the circumstances furnish reasonable grounds for the inference that if due care had been practiced by the person having control of the instrumentality causing the injury, the mishap would not have occurred. If the circumstances are such as will, unexplained, sustain the inference of negligence as reasonably probable, a prima facie case is made, and the issue goes to the jury.'


The classic statement of the doctrine of res ipsa loquitur is this:'[W]here the thing [causing the harm] is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' Erle, C. J., Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 Eng. Reprint 665, 667. John Bouchard & Sons Co. v. Keaton, 9 Tenn. App. 467, 479; North Memphis Savings Bank v. Union Bridge & Const. Co., 138 Tenn. 161, 177, 196 S. W. 492; Lewis v. Casenburg, 157 Tenn. 187, 7 S. W. (2d) 808, 60 A. L. R. 254; Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 230 S. W. (2d) 659.


The maxim res ipsa loquitur means that the facts of the occurrence evidence negligence; the circumstances unexplained justify an inference of negligence. In the principle of proof employed, a case of res ipsa loquitur does not differ from an ordinary case of circumstantial evidence. Res ipsa loquitur is not an arbitrary rule but rather 'a common sense appraisal of the probative value of circumstantial evidence.' Boykin v. Chase Bottling Works, 32 Tenn. App. 508, 520-523, 222 S. W. (2d) 889, 896. This maxim does not generally apply to motor vehicle accidents, but it may apply to such an accident where the circumstances causing it were within the driver's control and the accident was such as does not usually occur without negligence. So where a motor vehicle, without apparent cause, runs off the road and causes harm, the normal inference is that the driver was negligent, and res ipsa loquitur is usually held to apply. Some of the authorities supporting this view are: Tabler v. Perry, 337 Mo. 154, 85 S. W. (2d) 471; Adams v. Le Bow, 236 Mo. App. 899, 160 S. W. (2d) 826; Masten v. Cousins, 216 Ill. App. 268; Smith v. Kirby, 115 N.J. L. 225, 178 A. 739; Kinary v. Taylor, 243 App. Div. 651, 276 N.Y. S. 688; cf. Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36; 9 Blashfield, Cyclopedia of Automobile Law (1941 Ed.) sec. 6045; 5 Am. Jur., Automobiles. sec. 608; Annotation, 93 A. L. R. 1101.


A res ipsa loquitur case is a circumstantial evidence case which permits a jury to infer negligence from the mere occurrence of the accident itself.' Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 191. So after proof of the rem the adding of another fact or facts may supply the explanation and take the case out of the rule. For example, see Granert v. Bauer, 17 Tenn. App. 370, 373, 67 S. W. (2d) 748 (where driver ran out of road trying to miss a hole); Oliver v. Union Transfer Co., 17 Tenn. App. 694, 698, 71 S. W. (2d) 478 (where side of road caved in taking the bus with it).


The procedural effect of res ipsa loquitur generally has three different effects: (1) It warrants an inference of negligence which the jury may draw or not, as their judgment dictates. Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 442-443, 230 S. W. (2d) 659; Boykin v. Chase Bottling Works, 32 Tenn. App. 508, 522-523, 222 S. W. (2d) 889. (2) It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption. Gill v. Brown, 130 Tenn. 174, 178, 169 S. W. 752; Kay v. Metropolitan Street R. Co., 163 N.Y. 447, 57 N.E. 751; Prosser on Torts, 304; cf. Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E. (2d) 455, 153 A. L. R. 1122; Annotation, 153 A. L. R. 1134. (3) It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence. Turnpike Co. v. Yates, 108 Tenn. 428, 434, 67 S. W. 69; Gorsuch v. Swan, 109 Tenn. 36, 69 S. W. 1113, 97 Am. St. Rep. 836; Prosser on Torts, 304, 305. For a review of the numerous cases and a clear and helpful discussion of the subject, see: Prosser, The Procedural Effect of Res Ipsa Loquitur (1936), 20 Minn. L. Rev. 241-271; Prosser, Res Ipsa Loquitur in California (1949), 37 Cal. L. Rev. 183-234; Prosser on Torts (1941), 291-310.


Hudson v. Stepp, 54 Tenn.App. 640, 393 S.W.2d 301 (1965) explored the required quantum of proof more carefully and quoted with approval from Prosser on Torts, Second Edition at page 233: If the defendant seeks a directed verdict in his favor, he must produce evidence which will destroy any reasonable inference of negligence, or so completely contradict it that reasonable men could no longer accept it. The evidence necessary to do this will vary with the strength of the inference. It takes more of an explanation to justify a falling elephant than a falling brick, more to account for a hundred defective bottles than for one. If the defendant proves definitely by uncontradicted evidence that the occurrence was caused by some outside agency over which he had no control, that it was of a kind which commonly occurs without negligence on the part of anyone, or that it could not have been avoided by the exercise of all reasonable care, the inference of negligence is no longer permissible, and the verdict is directed for the defendant.


The res ipsa case can be been overthrown by showing that it is not a res ipsa case. But if the defendant merely offers evidence of his own acts and precautions amounting to reasonable care, it is seldom that a verdict can be directed in his favor. The inference from the circumstances remains in the case to contradict his evidence. If he testifies that he used proper care to insulate his wires, to inspect his chandelier, to drive his bus, or to keep defunct mice and wandering insect life out of his bottled beverage, the fact that electricity escaped from the wires, that the chandelier fell, that the bus went into the ditch and the bug was in the bottle, with the background of common experience that such things do not usually happen if proper care is used, may permit reasonable men to find that his witnesses are not to be believed, that the precautions described were not sufficient to conform to the standard required or were not faithfully carried out, and that the whole truth has not been told. It is of course not impossible that proof of proper care may be so overwhelming as to call for a directed verdict, but in the ordinary case it will not be sufficient to destroy the inference from res ipsa loquitur. 


The effect of a case of res ipsa loquitur, like that of any other case of circumstantial evidence, varies from case to case, depending on the particular facts of each case; and therefore such effect can no more be fitted into a fixed formula or reduced to a rigid rule than can the effect of other cases of circumstantial evidence. The only generalization that can be safely made is that, in the words of the definition of res ipsa loquitur, it affords 'reasonable evidence,' in the absence of an explanation by defendant, that the accident arose from his negligence. The weight or strength of such 'reasonable evidence' will necessarily depend on the particular facts of each case, and the cogency of the inference of negligence from such facts may of course vary in degree all the way from practical certainty in one case to reasonable probability in another.


In exceptional cases the inference may be so strong as to require a directed verdict for plaintiff, as in cases of objects falling from defendant's premises on persons in the highway, such as Byrne v. Boadle (1863), 2 H. & C. 720, 159 Eng. Reprint 299 (a barrel of flour fell from a window of defendant's warehouse); McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 100 S. W. 700, 9 L. R. A., N.S., 298 (an awning roller fell from defendant's building); and Turnpike Co. v. Yates, supra (a toll gate or pole fell on a traveler); cf. Annotation, 153 A. L. R. 1134.


In the ordinary case, however, res ipsa loquitur merely makes a case for the jury -- merely permits the jury to choose the inference of defendant's negligence in preference to other permissible or reasonable inferences. North Memphis Savings Bank v. Union Bridge & Const. Co., 138 Tenn. 161, 188, 196 S. W. 492; John Bouchard & Sons Co. v. Keaton, 9 Tenn. App. 467, 480-481; Boykin v. Chase Bottling Works, 32 Tenn. App. 508, 523, 222 S. W. (2d) 889; Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 442-443, 230 S. W. (2d) 659; Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 217-225. 


Where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant. (Slater v. Barnes, 241 N.Y. 284.)' (Galbraith v. Busch, 267 N.Y. 230, at p. 234.) In such circumstances the doctrine of res ipsa loquitur relieves a plaintiff from the burden of producing direct evidence of negligence, but it does not relieve a plaintiff from the burden of proof that the person charged with negligence was at fault.


The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law courts must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. Courts may be constrained to act upon indecisive evidence where complete proof is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available. A common-sense appraisal of the probative value of circumstantial evidence' excludes the arbitrary use of any rule of thumb. Mr. Justice Walter, wrote a notably careful opinion in which he points out that the doctrine of res ipsa loquitur does not mean that the 'plaintiff may recover without sustaining the burden of proving negligence by a fair preponderance of the credible evidence. (Goldstein v. Pullman Co., 220 N.Y. 549, 554.)


The doctrine merely means that certain occurrences contain within themselves a sufficient basis for an inference of negligence, and it does not differ from ordinary cases of circumstantial evidence except in the respect that the facts and circumstances from which the inference of negligence is drawn are immediately attendant on the occurrence. (Griffen v. Manice, 166 N.Y. 188, 196; Robinson v. Consol. Gas Co., 194 N.Y. 37, 40, 41; Plumb v. Richmond L. & R. R. Co., 233 N.Y. 285, 288.)


The doctrine is not confined to any particular class of cases (Goldstein v. Pullman Co., 220 N.Y. 549, 554), and the test of its application is whether or not the occurrence does in truth point to negligence of the defendant as the fair and reasonable inference from the occurrence. Where the agency which produces the injury is not within the control of the person charged with negligence, or where the occurrence is one which naturally might occur from causes other than his negligence, the inference of his negligence is not fair and reasonable; but wherever there is a combination of those two conditions, viz., control by the person charged with negligence and improbability of the occurrence having happened if he had been reasonably careful, the doctrine applies. (Bressler v. New York Rapid Transit Corp., 270 N.Y. 409, 413.)' (174 Misc. Rep. 967, 969.)


Even where the rule of res ipsa loquitur is applied, the burden of showing that the injury is due to the negligence of the defendant rests on the plaintiff. The burden never shifts to the defendant, and the plaintiff must sustain its claim by a preponderance of evidence. (Plumb v. Richmond Light & R. R. Co., 233 N.Y. 285.) The direction of a verdict in favor of the plaintiff might be justified if the rule of res ipsa loquitur created a full presumption in favor of the plaintiff. It is without logical foundation if res ipsa loquitur is only a common-sense rule for the appraisal of the probative force of evidence which enables an injured person, in proper case, to establish prima facie that the injury was caused by the defendant's negligence, though the injured person may be unable to produce direct evidence of want of care in any particular. (See Wigmore on Evidence [3d ed.], § 2509.)


It has been said by the Supreme Court of the United States that 'Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.' (Sweeney v. Erving, 228 U.S. 233, 240.)


In other jurisdictions, too, the courts have held that even where a defendant does not produce evidence to rebut the plaintiff's prima facie case established by application of the rule of res ipsa loquitur, it is for the jury to determine whether the inference of negligence should be drawn. (Hughes v. Atlantic City & Shore R. R. Co., 85 N.J. L. 212; Ross v. Cotton Mills, 140 p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; } p.p2 {margin: 0.0px 0.0px 0.0px 0.0px; ; min-height: 14.0px} p.p3 {margin: 0.0px 0.0px 0.0px 0.0px; ; color: #3366ff} p.p4 {margin: 0.0px 0.0px 0.0px 0.0px; font: 12.0px } p.p5 {margin: 0.0px 0.0px 0.0px 0.0px; font: 12.0px ; min-height: 15.0px} span.s1 {color: #ff0000} span.s2 {color: #3366ff} span.s3 {color: #0070c0} span.s4 {color: #000000} span.s5 {font: 11.0px Helvetica} >N.C. 115; White v. Hines, 182 N.C. 275; Glowacki v. Northwestern Ohio Ry. & Power Co., 116 Ohio St. 451.)


The analysis of the origin, nature and scope of the doctrine or rule of res ipsa loquitur contained in the opinion of Mr. Justice Walter seems to point to the inevitable conclusion that, in accord with these cases, evidence which under the rule of res ipsa loquitur satisfies the plaintiff's duty of producing evidence sufficient to go to the jury does not create a full presumption and is ordinarily not sufficient, even where the defendant produces no evidence in contradiction or rebuttal, to entitle the plaintiff to the direction of a verdict.


Though in some other jurisdictions it has been held that where a defendant produces no evidence to rebut an inference or presumption of negligence, arising under the rule of res ipsa loquitur, the court may direct a verdict in plaintiff's favor, in no case has it been held that a verdict may be directed where evidence is presented by the defendant which weakens such inference, even though it does not conclusively rebut it. Very little evidence might suffice to rebut a presumption. (Kearney v. London, Brighton & South Coast Ry. Co., 5 Q. B. 411 [1870].) There may be cases where the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence. 


 In England the authorities are in entire accord. Plaintiff was passing along a highway, under a railroad bridge, when a brick used in the construction of the bridge fell and injured him. Negligence in the railroad was presumed. (Kearney v. London Ry. Co., L. R. 5 Q. B. 411.) A barrel of flour rolled out of the window of a warehouse, injuring a person passing upon the street. Negligence in the warehouseman was presumed. (Byrne v. Boadle, 2 Hurl. & C. 722.) The same rule was declared, upon a similar state of facts, in Scott v. London Docks Co., 3 Hurl. & C. 596; likewise in Briggs v. Oliver, 4 Hurl. & C. 403. The explosion of a boiler of a steamboat is prima facie evidence of negligence. (Posey v. Scoville, 10 Fed. Rep. 140; Rose v. Stephens etc. Co., 11 Fed. Rep. 438; Grimsley v. Hawkins, 46 Fed. Rep. 400.) In the Rose case, it is said: 'In the present case the boiler which exploded was in the control of the employees of the defendant. As boilers do not usually explode when they are in a safe condition, and are properly managed, the inference that this boiler was not in a safe condition, or was not properly managed, was justifiable.' The same general principle is declared in Cummings v. National Furnace Co., 60 Wis. 603; Mulcairns v. City of Janesville, 67 Wis. 24; Kirst v. Milwaukee etc. Ry. Co., 46 Wis. 489; Thomas v. Western Telegraph Co ., 100 Mass. 156; Howser v. Cumberland etc. Ry. Co., 80 Md. 146; 45 Am. St. Rep. 332. In the case of Dixon v. Pluns, 98 Cal. 385, 35 Am. St. Rep. 180, a case which, in its facts, is an exact photograph of one of the New York cases hereafter cited, a chisel, used by a workman upon a building, fell upon and injured a girl while passing upon the street below. It was held that a prima facie case of negligence was established, and that the rule as declared in section 60 of Shearman and Redfield on Negligence was sound law and controlling.


While there is some discord existing in the New York authorities as to the true doctrine upon this question, still they are largely in line with the cases we have above cited. Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530, is a leading case upon the question, and, while it has been vigorously assaulted at various times during the past twenty years, it still stands as a declaration of law by the courts of that state, not weakened and mutilated by such assaults, but rather strengthened and unscathed. In Cahalin v. Cochran, 1 N. Y. St. Rep. 583, negligence was inferred from the fact of a chisel falling from a building where workmen were engaged, and striking plaintiff when walking upon the street. A case to the same effect is Gall v. Manhattan Ry. Co., 5 N. Y. Supp. 185; 24 N. Y. St. Rep. 24. Mullen v. St. John, supra, is expressly approved, and the doctrine for which we are here contending ratified to its full limits in the very recent case of Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; 30 Am. St. Rep. 678.


As supporting a contrary doctrine, one of the leading cases is Young v. Bransford, 12 Lea, 232. Yet, in the report of that case, we find the following language: 'At the same time the fact that there was an explosion, which is not an ordinary incident of the use of a steam boiler, ought to have some weight, inasmuch as it may be out of the power of the aggrieved party in some instances to prove any more. The reasonable rule would seem to be that laid down by Judge Wallace: 'That from the mere fact of an explosion it is competent for the jury to infer, as a proposition of fact, that there was some negligence in the management of the boiler, or some defect in its condition.'' Another case is Huff v. Austin, 46 Ohio St. 386, 15 Am. St. Rep. 613, a case which relies for support in part upon Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623. Yet, in Mullen v. St. John, supra, the Losee case was expressly held to be not in point by reason of the presence of other evidence. Cosulich v. Standard Oil Co., 122 N. Y. 118, 19 Am. St. Rep. 475, is the latest authority to which our attention had been directed holding these views. It cites the Tennessee and Ohio cases, and also relies, as do other of these cases, upon a general statement found in Thompson on Negligence, page 1227, namely: 'But it is believed that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to evidence of negligence on the part of the defendant.' The case cited by Mr. Thompson in no way supports this text, if the text is to be construed as the Cosulich case seems to construe it, and the learned author's illustrations which immediately follow conclusively indicate that, in making the statement quoted, he never contemplated for it any such construction as the New York court seems to give it. This is doubly apparent when we see that upon the same page he indorses the doctrine of Byrne v. Boadle, supra. Indeed, the author prefaces his whole discussion of the question of res ipsa loquitur by a report in full of the celebrated case of Kearney v. London Ry. Co., supra, the doctrine of which he fully indorses, and which in no sense was a case of contractual relation. Beyond all this, the Volkmar case, already cited, is a later expression emanating from the New York court, and earlier cases coming from the same source, if opposed to the doctrine there declared, must give way.


There is another class of cases in all essentials fully supporting our views upon this question of negligence. These cases arise in the destruction of property caused by fire escaping from locomotive engines, and, while there is some conflict in the authorities as to the true rule, it is said in Shearman and Redfield on Negligence, section 676: 'The decided weight of authority and of reason is in favor of holding that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used all those precautions for confining sparks and cinders (as the case may be) which have been already mentioned as necessary. This is the common law of England, and the same rule has been followed in New York, Maryland,' etc. (Citing many other states.) While we have not deemed it necessary to verify the correctness of the statement of the authors as to all the states mentioned, we do say there are numberless cases supporting the text. (See Pigott v. Eastern Counties Ry. Co., 3 Com. B. 228; Louisville etc. R. R. Co. v. Reese, 85 Ala. 497; 7 Am. St. Rep. 66; Spaulding v. Chicago etc. Ry. Co., 30 Wis. 110; 11 Am. Rep. 550, citing many cases.)