Stanolind Oil & Gas Co. v. Bunce

I concur in the result announced in the foregoing opinion, but wish to state my reasons for believing that the case was submitted to the jury on an erroneous theory by instructions 17 and 18 which purport to apply the principle of res ipsa loquitur.

I think I may say that the members of the court agree that (as explained in Sweeny v. Irving, 228 U.S. 233) the principle permits, but does not compel, a finding of negligence. In applying the principle to the facts of a particular case, the court simply holds or declares that the fact-finding body may infer negligence from the proved circumstances, if that inference is more reasonable than an inference of due care. In jurisdictions where this view is entertained, there would seem to be no substantial reason for distinguishing cases in which the principle of res ipsa loquitur might be applied from other cases where negligence may be inferred from circumstantial evidence.

The essentials of the principle of res ipsa loquitur are thoroughly discussed in the foregoing opinion. We hold the principle inapplicable to this case in which there is evidence, including the testimony of the plaintiff himself, tending to show that the apparatus that permitted the gas to escape into the basement was not in the exclusive control of the defendant. We hold, also, that the evidence was sufficient to take the case to the jury on the questions of defendant's negligence and plaintiff's contributory negligence.

No doubt there are many cases in which the principle of res ipsa loquitur has been resorted to, though the injured party was handling or using the thing through or from which his injury was received. In some of those cases it could have been held as a matter of law that the plaintiff did nothing to cause the accident or to contribute to it. In others, in which the verdict acquitted the plaintiff of the suspicion or charge of contributing toward his injury, the decision, as it seems to me, might have been put on the ground that the same result would have been reached if the case had been handled as an action for negligence proved by circumstantial evidence.

If there be cases that sanction the application of the principle of res ipsa loquitur when the evidence is sufficient to raise the question of plaintiff's contributory negligence in using or controlling the thing that caused his injury, I doubt their correctness. It is frequently said that the conditions, that the apparatus must have been at the time of the injury in the control of the party charged and that the injurious occurrence must have happened irrespective of any voluntary action at the time of the party injured, are imposed for the very purpose of excluding from the operation of this principle those cases in which there is a possibility that the plaintiff contributed to the injury. See Mathews v. Chicago N.W. Ry. Co.,162 Minn. 313, 202 N.W. 896; Jump v. Ensign-Bickford Co.,117 Conn. 110, 122, 167 A. 90.

I do not doubt that there are cases in which the court cannot say as a matter of law that the cause of the injurious occurrence was, or that it was not, in the control of the defendant at the time of the injury, and the issue of fact on that point would have to be decided by the jury. If it be contended that this is such a case, there still would be no justification for instructions 17 and 18.

These instructions are quoted in full in the foregoing opinion, and need not be copied again. Instruction 17 defines the rule of res ipsa loquitur, recognizing the condition that "the thing which causes injury" must be "under the management and control of the defendant." Instruction 18 then tells the jury that the plaintiff "is only required to show that the accident was one that would ordinarily not have happened had due care been employed," and that the "burden of proceeding then shifts to the defendants to show they exercised ordinary care." Thus, while instruction 17, in declaring the abstract principle, recognizes the condition of control by defendant, instruction 18, in stating what the plaintiff was required to prove to "shift the burden of proceeding," says nothing about control by defendant, and probably was understood by the jury as a declaration that under the law and the evidence, there was no issue on the question of plaintiff's control of the thing which caused the injury. This notwithstanding there was evidence to support the defendant's contention that plaintiff himself, in his use and control of the heater, permitted the gas to escape into the basement. Instruction 18 was evidently copied from Brunig v. Pacific Gas Elec. Co., 140 Calif. App. 254, 35 P.2d 226, where it was approved, but it will be noted that in that case there was no room for the contention that any one except the defendant was using or in control of the pipes from which the gas escaped.

RINER, J., concurs.