Curby v. Bennett Glass & Paint Co.

PRATT, Justice. During the course of the trial in the lower court counsel for Harry Curby, respondent, made this statement: “* * * but we take the position of res ipsa loquitur now in this case * * His theory of trying the case was substantiated by the fact that he rested after the following salient facts were proved as a basis for his cause of action, exclusive of those proved in support of the element of damages: Harry Curby, while walking north on Main Street in Salt Lake City, Utah, on the west side of that street, was struck in the right eye with particles of glass. He had arrived at a point some 6 to 8 feet south of the south end of a pane of glass being trimmed by employees of the Bennett Glass and Paint Company. The pane of glass was some 4 to 514 feet high, some 8 feet long and about l/8th of an inch thick. It stood on the sidewalk parallel to the front of the building, some 3 feet therefrom. At its north end, the end farthest from Curby as he approached — one employee stood facing toward Curby, holding the glass. About 3 feet north of the south end of the glass, the other employee stood with his back toward Curby, the glass top edge under his left arm, clipping about IV2 inches of the top edge with a pair of clippers. This man was about 9 to 11 feet away from Curby when the latter was hit in the eye. The area around the glass was not roped off; and there was no shield or cover used against possible flying glass (the absence of these alleged protective measures was the grounds of negligence alleged). Main Street is the main business thoroughfare of 'Salt Lake City. The time was approximately 9:45 A. M. on a week day, October 7, 1937. There was little *82 or no wind blowing. These facts have been taken from the testimony of Curby and his witnesses offered prior to his resting of the case. The defense consisted mainly of testimony to prove that glass does not fly when clipped; that it was not the custom to use shields under such circumstances (the matter of custom was ruled out by the lower court); and that Curby did not suffer an eye injury as a result of these alleged circumstances (the attempted proof on this subject became the subject of the controversy between the parties as to the admissibility of alleged privileged communications to a doctor). Two quotations from 20 R. C. L. are rather appropriate to an understanding of this case. They are: “* * * More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been, under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care * * 20 R. C. L. 187. “* * * And a careful analysis of the better considered decisions shows that negligence will not be presumed from the mere fact of injury, when that fact is as consistent with a presumption that it was unavoidable as it is with negligence; and therefore, if it be left in doubt what the cause of the accident was, or if it may as well be attributable to the act of God or unknown causes as to negligence, there is no such presumption * * *.” 20 R. C. L. p. 185. See also Kapros v. Pierce Oil Corporation, 324 Mo. 992 (headnote 1), 25 S. W. 2d 777, 78 A. L. R. 722, plus annotation. It is apparent that the presumption cannot be a doubtful one. *83 Is it common knowledge that glass flys when clipped? If the answer is in the affirmative, then there is justification for applying the principle of res ipsa loquitur in this case. An analysis by comparison is sometimes rather effective. In the case of falling objects we find many instances of the application of this presumption known as res ipsa loquitur. It is common knowledge that objects with weight will fall if unsupported. It requires no expert to prove that to us. If the suspension of that object depends upon the control of an individual, it will remain suspended as long as he exercises proper control over it. Thus we say that under ordinary circumstances if that object falls and injures someone it is sufficient proof of carelessness on part of the one in control to justify his coming forward and explaining the cause. We know that when an object falls, gravity continues it in its downward movement until intercepted by some other force, object, or by the earth’s surface. Distance is of no materiality once it is started on its downward course. These are simple truths known to all. But what about flying clipped glass — if it does fly — if it is common knowledge that it flys? How far does it fly? In this case, gravity retards its movement rather than aids it. It is not like the falling object — it does not continue its horizontal course indefinitely. As to that course, distance is very material. Plaintiff in this case was some 19 feet distant from the clipper when struck. Suppose he had been 59 feet away? Suppose a mile? Does res ipsa loquitur apply in all such cases? The importance of the element of horizontal distance in considering the trajectory of flying glass deprives us of the right to infer merely from glass clipping and an injury that the injury was caused by negligence in the conduct of the clipping. To those of who would say it is common knowledge that glass flys when clipped, may the rest of us not ask: Are you really giving what is common knowledge — knowledge *84 acquired from prior common experiences, or are you reasoning it out thus: Glass is brittle, therefore it must fly when clipped? Chalk is brittle too — many things are brittle; but whether or not they fly when clipped depends upon their resistance to force, the amount of force, and the direction of its application. To say that glass flys when it is clipped is an assumption of facts not within common knowledge, but within the knowledge of those experienced in a certain line of work. Brittle objects may be so finely pulverized in clipping that the slightest breeze will pick them up, whether they have come to rest or not, and carry them. Such flight is not induced by the clipping — and is not the basis of the present action. If this judgment can not be supported upon the principle of res ipsa loquitur, and we are of the opinion it can not, it must fall. There was a failure of proof by respondent of any duty on the part of appellant to provide the alleged necessary protective measures against injury to passersby. The lower court should have so instructed — as requested by appellant. This failure was not obviated by the doctrine of res ipsa loquitur under the facts of this case, for the reasons we have set out above. As this disposes of this case, it is unnecessary to discuss the other alleged errors. The judgment of the lower court is set aside, and the case remanded with directions to the lower court to enter a judgment in favor of defendant of no cause of action. Costs to appellant. MOFFAT, C. J., and LARSON, J., concur.