Stearns v. Ontario Spinning Co.

Opinion by

Mb. Justice Fell,

The plaintiff’s testimony showed that her husband, while la-wfully in an area way in the building in which he was employed, was struck on the leg by an axe head and thereby received a Avound from the effects of which he died; and that, the axe head fell from an open doorway in the fifth story of the-building, which was occupied by the Ontario Spinning Company, the corporation defendant. The plaintiff then called Clement, an employee of the defendant, who testified that at the time of the accident he was using the axe in question in cutting or breaking the iron bands on a bale of cotton; that he-had so used the same axe for about two years; that he had neArer had any trouble with it; that lie had frequently examined it to-see whether it was in good condition; that on this occasion, while he had not made any particular examination, “ it seemed to be in first class condition;” that he had noticed nothingAvrong with it.; that immediately before the accident he had been using it for about two minutes, and had cut ten bands from a bale of cotton, and that wlien he raised it to strike again the-head flew off the handle and out of the open doorway behind him.

The doctrine of res ipsa loquitur applies where under the circumstances shown the accident presumably would not have happened if due care had been exercised. Excepting where-contractual relations exist between the parties, as in the case of carriers of passengers and some others, negligence will not be presumed from the mere happening of the accident and a consequent injury, but the plaintiff must show either actual negligence or conditions which are so obviously dangerous as to admit of no inference other than that of negligence. The burden which is thus thrown upon the defendant is not that of satisfactorily accounting for the accident, but merely that of showing that he used due care. It is therefore unnecessary in this case to consider whether proof of the accident and its attendant circumstances was sufficient to put the defendant to its defense, for if any presumption of negligence had been raised by the previous testimony it was a presumption of fact only, and was entirely rebutted by the testimony of Clement, the defendant’s employee, who was the last witness called by the plaintiff. His evidence showed that he was a competent man, and that he had used duo care, and it was at the same time entirely consistent with the happening of the accident as described by the other witnesses. For to those who are familiar with the construction of the ordinary axe, such as the one in this case was shown to have been, it is readily conceivable that the head and handle may part although apparently securely joined, and to those who are familiar with their use it is known that they sometimes do so without previous warning.

What, then, was there to submit to the jury? The defendant, as we have said, was not bound to account for the happening of the accident. It had been relieved by the plaintiff of the burden, if any there was, of showing the exercise of due care-The plaintiff’s whole testimony not only failed to show negligence on the part of the defendant, but rebutted any presumption of negligence which may have arisen, and affirmatively proved its absence.

We are of the opinion that the nonsuit was properly entered, and the judgment is affirmed.