Scott v. Wingenberg

Gorman, J. The action below was one to recover damages by the plaintiff, as administrator of the estate of Edgard George Naas, deceased, a minor child two years of age, for the alleged wrongful death of said child by reason of the negligence of the defendant. The record discloses that on the 13th day of March, 1915, at .ten o’clock in the morning, the decedent, Edward George Naas, was killed by the overturning of a .heavy mortar box belonging to the defendant, George "Wingenberg, which had been left on the sidewalk of Campbell alley, or Campbell street, in the rear of his premises, 1618 Logan street. The box had been left there the night before by .an employee in the usual course of his employment. Campbell street, or alley, where the mortar box was placed, was one of the public streets of the city of Cincinnati, about twenty feet wide, with a thirty-four inch sidewalk upon the side towards the defendant’s property. This street was paved, and so was the sidewalk. The record of the evidence showed that a great number of children were accustomed to congregate in the alley, or street, and play there, and this fact was known to the defendant. The mortar box was slanting up against the wall of his stable, or barn, and was about six feet long and thirty-nine inches in width and about twelve inches ip depth. The box was found overturned in the alley, and the child with a crushed skull was found under it. There was no evidence as to how the box fell; whether it fell of its own weight or was pushed over by someone or by the child doe's not appear. There was evidence tending to show that this box was leaning up against the wall, one witness testifying that the angle made — 3 — by tbe box was 85 degrees, wbicb would make tbe box stand almost parallel with the wall of the stable. There was also evidence tending to show that the box was in a state of unstable equilibrium. It weighed in the neighborhood of two hundred pounds. The child was found under this box within a very few minutes after it had been killed. There is an ordinance of the city of Cincinnati prohibiting any person from keeping or permitting to remain any box, barrel, crate, etc., or other movable article on or over any street, sidewalk or thoroughfare in the city, longer than a reasonable time necessary in the transaction of business loading and unloading, to remove said articles. This ordinance was passed under the grant of power given to the councils of municipalities by Section 3714, Gf. C., which imposes the duty upon municipalities and the councils thereof to have the care, supervision and control of public streets, avenues, alleys, sidewalks, etc., and shall cause them to be kept open, in repair and free from nuisance. This ordinance was passed manifestly for the protection and safety of the public in using the streets and sidewalks. At the close of plaintiff’s evidence, upon motion of defendant, the court instructed the jury to return a verdict for the defendant, which was accordingly done. Several errors are complained of by the plaintiff in error as a reason for asking this court to reverse the judgment of the superior court. It is claimed that the court erred in arresting the case from the jury and in instructing a verdict for the defendant. We are of the opinion that the evidence in this case discloses a case of res ipsa loquitur. The evidence discloses that this box fell; but whether it fell of its own weight because it was in a state of unstable equilibrium, or was pushed over by the child or someone else does not appear. The rule of res ipsa loquitur invoked is stated as follows in Jones’ Commentaries on Evidence, Blue Book, Volume 1, Section 15a: '‘There is another class of cases in which it is held that where the thing is shown to be under the management of the defendant — 4 — or his agent, and where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself raises a presumption of negligence in the absence of any explanation. The English case where a passer-by in a street was hurt by a barrel of flour falling from a warehouse window is an illustration of this group of eases. (See Byrne & Boadle, 2 Hurl & C., 722.) The same principle is illustrated by a New York case, in which it was held that since the owner of a building adjoining a street is under obligation to take reasonable care that the same shall not fall upon the passers-by, if such an accident happens without any proof of explanatory circumstances, negligence will be presumed. (Mullen v. St. John, 57 N. Y., 567.) In such eases the facts are said to speak for themselves res ipsa loquitur. But in all such cases the cause of the .accident-must be clearly connected with the defendant, as being by his act or under his control, before negligence can be presumed.” Now in the case under consideration the evidence discloses that this box belonged to the defendant and that it was under his control and management, and was placed by him or his servant in the' street on the sidewalk the night before it fell upon this child. It is manifest to us that this box could not have fallen on this child unless it were either pushed over upon him by someone, or was in a state of unstable equilibrium; and it appears to us that the fact that it fell upon the child raised a presumption of negligence which was encumbent on the defendant Wingenberg to rebut and to show that he was not guilty of any negligence which proximately caused the death of this child. This court, in the case of Roth Packing Co. v. Williams, 20 C.C.(N.S.), 362, held that the fact that an automobile truck came out of the garage or premises of the Roth Packing Co. and ran over and killed, a boy, without showing what caused the truck to move out upon the street, presented a case in which the rule of res ipsa loquitur should be applied. This court in that case approved the following language embodied in the charge of the lower court: “No direct evidence has been offered of any particular and specific act of negligence of the defendant that caused the automobile to come out of the building * * * but it is claimed — 5 — by the plaintiff in this ease that the fact that the automobile came out in the way it did is itself evidence of negligence, and I will state to you that it is the law that when a thing which causes the injury is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords evidence in the absence of explanation that the accident arose from want of care. ’ ’ We are of the opinion, therefore, that when the plaintiff in this case established the fact, as it did, that this mortar box had fallen upon this child and billed it in the street, a case was presented which required the defendant to explain how it happened and to show that it did not fall becase of any negligence on the part of the defendant. Furthermore, we think the evidence in this case tended to show that the box was in a state of unstable equilibrium and likely to fall. The fact that it might fall upon a person in the street was a circumstance which should have been taken into consideration by the defendant when he placed the box in this street. We are of the opinion that the falling of this box, whether by reason of the fact that it was in a state of unstable equilibrium or because it was pushed over by some one in the ordinary course of things was an event which should have been contemplated as not entirely improbable, and that the defendant who placed the box in the street should have anticipated the reasonable and probable consequences which might arise from the falling of this box either of its own weight or from being pushed over. In Earl v. Crouch, 40 N. Y. St., 847, a case is presented where plaintiff’s administrator brought an action to recover damages for the death of the deceased by the negligent act of the defendant. The defendant caused to be placed near the sidewalk upon one of the streets of the city of Rochester a pile of lumber five feet wide and three feet six inches high. The lumber was piled by placing one piece over another in tiers. Nothing was used to bind the tiers together. The tier nearest the sidewalk leaned about two inches from a perpendicular away from the remainder of the pile. The deceased was a child four years and eleven — 6 — months old, residing upon the street near the pile. He went from his home and was found dead under the lumber which composed the tier next the sidewalk. All this tier except the three lower pieces had fallen out towards the sidewalk upon the child. The position of the deceased’s body and arms indicated that he had taken hold of the lumber with his hands with a view probably of climbing upon the pile, and thereby caused the lumber to fall. There was a recovery had in the case, and the Appellate Division of the Supreme Court in passing upon the case, said: ‘ ‘ The appellant does not claim that the child was sui juris, or that its parents were guilty of negligence contributing to its death. At the close of the testimony defendant’s counsel asked the court to direct a verdict for the defendant. “The request was refused, and defendant duly excepted. There was abundant evidence that the lumber was piled in a negligent careless manner instead of piling it so that the tiers would rest against and support each other; the tier that fell was so piled that the slight force applied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about it at all hours of the day was reckless, culpable negligence.” In the case just cited there was no evidence to show how or why the lumber pile had fallen upon this child. The court evidently held that the accident itself furnished evidence of negligence. In the case of Holly v. Bennett, 46 Minn., 386, a child was injured by the falling of lumber from a pile while it was in the street. A recovery was had in the case. The Supreme Court of Minnesota in passing upon the case, p. 387, says: “Upon a careful examination of the record we find that the only other assignment of error of sufficient importance to merit attention is as to the sufficiency of the evidence to establish the alleged negligence of the defendants. Upon this issue the evidence is not strong or persuasive, but we think there was enough to go to the jury. It was the duty of the defendants to exercise reasonable care in erecting their lumber piles along a street — 7 — where children or others were likely to pass or congregate, and the measure of their responsibility was the extent of danger to be apprehended, under the circumstances of the case. The evidence tends to show that the boy was found between two lumber piles (which were built over into the street) under a stick of timber which had fallen on him and broken his leg.. Witnesses familiar with the locality stated that the top timbers were carelessly piled, and that the ‘inside pile was piled very carelessly.’ ” In the ease at bar the defendant knew many children were accustomed to pass along this street and to make it a playground. He should, in the exercise of ordinary care, have anticipated, when placing this box on the public street in violation of the ordinance and in the manner in which it was placed, that it was likely to result in injury to some one passing along the street. Of course, in this case there-can be" no negligence imputed to this two-year-old child, and while contributory negligence of the parents was pleaded in this case, this was a matter of substantive defense which could not be made out or evidence tending to establish it produced until after the plaintiff had rested his case. Another error complained of is that the trial court refused to admit in evidence the ordinance of the city of Cincinnati prohibiting the piling of boxes and materials upon the sidewalk. Upon what ground the court refused to admit this ordinance we are unable to learn from the record.- We are of the opinion that it was admissible for the purpose of showing that the defendant in this case violated an ordinance of the city passed manifestly for the safety of the public traveling upon the streets, when he left this box upon this street and sidewalk without any reasonable excuse for leaving it there. But aside from the question as to whether or not the court should have admitted this ordinance in evidence, we are of the opinion that the trial court should have taken judicial notice of this ordinance. The Superior Court of Cincinnati is a court of the city of Cincinnati, and it has been held that that court, as well as every other court of the city of Cincinnati, will and should take judicial notice of the ordinances of Cincinnati. The court of common — 8 — pleas does not take judicial notice of the ordinances of the city of Cincinnati because it is not a court of the city, and therefore in trials before that court ordinances of the city of Cincinnati must be offered and admitted in evidence. We think that the violation of the ordinance by the defendant in this case established a case of negligence per se, as was held in the case of Schell v. Dubois, decided February 29, 1916, by the Supreme Court, in which the court says in the syllabus: “The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence in itself, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not contributed to by want of due care on the part of the injured person, the defendant is liable.” The question of whether or not the violation of this ordinance by the defendant in leaving this box upon the sidewalk was the proximate cause of the death of this child, is one which should have been submitted to the jury under the evidence and proper instructions from the court. There was evidence tending to show that the falling of this box upon this child was the proximate cause of this child’s death, and as we have said that the accident itself raises a presumption of negligence, it was for the defendant to explain and show that the box did not fall through his negligence. Where there is a scintilla of evidence in support of the plaintiff’s claim the cause must be submitted to the jury, and a motion to arrest the case from the jury should be overruled. Furthermore, it is claimed that the court erred in permitting counsel for the defendant on cross-examination of two of the plaintiff’s witnesses to go into the question of the contributory negligence of the parents of this dead child in permitting it to run out on this street, in view of the fact that it is a dangerous place. It is claimed that the rule laid down in Legg v. Drake, 1 O. S., 286, was violated when the court permitted counsel for defendant by his cross-examination of plaintiff’s witnesses to go into the substantive defense to show contributory negligence. — 9 — Many of the questions asked by counsel for defendant were proper. As we understand the rule laid down in the case of Legg v. Drake, supra, it is that counsel on cross-examination may not only interrogate the witness on matters which have been brought out on direct examination, but may go further and interrogate the witness upon all matters which the party who called the witness might have gone into in order to establish his ease or defense. Now it was not incumbent on the plaintiff to show contributory negligence, and we think that in so far as the court permitted counsel for defendant to ask questions which tended to show that the parents of this boy were guilty of contributory negligence, the court erred. But this error was not prejudicial to the plaintiff in error, because the jury were not permitted to pass upon the evidence, to weigh or consider it, or to consider the question of negligence or contributory negligence. The jury were instructed to return a verdict in favor of the defendant, and under such circumstances it was not material what the rulings of the court were with reference to the admission or exclusion of evidence, unless it be that the court arrested the case from the jury under the belief that the plaintiff’s own evidence tended to show contributory negligence upon the part of the child’s parents which he had failed to remove when he rested his ease. We find no other errors in the record prejudicial to the plaintiff in error. But for the reasons stated we are of the opinion that the judgment of the court below must be reversed and the cause remanded for a new trial. Jones (E. H.), P. J., concurs; Jones (Oliver B.), J., dissents in a separate opinion.