Leiferman v. White

Birdzell, J. This is a personal injury action and comes to this court upon an appeal from a judgment in favor of the plaintiff and from an order denying a motion for a new trial, or, in the alternative, for a judgment notwithstanding the verdict. The facts are as follows: The plaintiff, at the time of the injury complained of, was employed by the defendants, who conducted a confectionery business and ice cream factory at Minot, as copartners under the name of White Ice Cream Factory. On the 8th day of May, 1915, the defendants directed the plaintiff to sort potatoes which were situated in the basement of the building occupied by them. The basement was lighted by means of electric lights suspended from the ceiling by cords. While there is some conflict in the testimony relative to the directions given to the plaintiff by White, it appears either that the plaintiff was directed not to touch the light that was suspended on a long cord, or that he was directed to be careful not to break the light. The plaintiff went to work sorting the potatoes about 1 o’clock in the afternoon, and after he had been at work a short while, one Davy, a foreman having direct supervision over plaintiff’s work,, heard an outcry from the basement and was the first to go down to determine what the trouble was. He found the plaintiff lying against the wall, with blood running down his face from a wound over his eye. When found by Davy, the plaintiff had the electric light globe and wire in his hands.. In falling, he — 153 — had torn' the wire from the fixture in the ceiling. Davy, with the aid of another employee, Lowe, who had been called to assist, helped the plaintiff up and put water on him to revive him. Plaintiff claims to have received an injury on the hand, in the nature of a burn, and a cut over one of his eyes. He sought medical attention at once, and later, on the same afternoon, went back to work. His testimony shows, however, that, by reason of the shock and the injuries received, he was unable to work for considerable time after the day of the accident. There was no direct evidence going to show any negligence on the part of the defendants in connection with the electric wiring or with the character of the current used in the building. There is some testimony, however, going to prove an admission on the part of Davy, the foreman, to the effect that he had some knowledge of a dangerous condition of the wiring. The testimony referred to is that of one George Prem, who testified that on the day plaintiff was hurt he was in "White’s store and heard Davy say in substance that “if the thing (meaning the wire cord) had not been pulled out of the ceiling, Lieferman would have been killed,” and that, “when he heard Lieferman holler, he knew what was the matter and went and turned off the switch.” In addition to this testimony there is evidence given by expert witnesses called by the defendants, to the effect that electric appliances such as those in question, in approved condition with perfect insulation, can be handled without giving a shock to a person taking hold of the bulb; further, that all of the wiring and the socket were inspected and found to be perfect and the insulation found to be perfect; also that the socket was of standard make and of a kind that was in general use. The jury returned a verdict in favor of the plaintiff for $150, upon which judgment was entered. Error is predicated upon the refusal of the trial court to grant defendants’ motion for a directed verdict at the close of the plaintiff’s ease, and upon the denial of the motion for judgment notwithstanding the verdict, or for a new trial. Upon this appeal it is contended by the appellants: Eirst, that the evidence is insufficient to show that the plaintiff sustained any injury; second, that, if injured, the injury was occasioned by a risk assumed by the plaintiff as being incident to his employment; third, that plaintiff was guilty of contributory negligence; — 154 — and, fourth, that the evidence shows no negligence on the part of the -defendants. The first three contentions are so lightly treated in the brief of the appellants that we can scarcely regard them as being seriously urged upon this appeal. Furthermore, an examination of the record shows that, so far as these contentions are concerned, there was undoubtedly ample evidence upon which to submit the case to the jury. All of the evidence, however, going to establish the plaintiff’s version of the case upon these matters, was disputed, and the defendants attempted upon the trial to discredit a large part, if not all, of it by impeachment. But this attempt resulted in creating issues as to the credibility of witnesses, which could only be decided by the jury. The verdict of the jury having been against the defendants, it must be assumed that the attempt to discredit the plaintiff’s witnesses upon these matters failed. The appellants support the fourth contention by a well-considered argument, which merits the serious attention of this court. The chief argument is that, as the plaintiff has introduced no direct testimony going to establish negligence on the part of the defendants, there is no issue to be presented to the jury. On the other hand, the respondent contends that, having shown the circumstances surrounding the accident, chief of which was the finding of the plaintiff in a dazed, stupefied, or unconscious condition, with the electric appliances in his hands which had been torn loose from the fixture, and with a bum on his arm and a cut over one eye, a situation was presented justifying an inference of negligence by the jury. In short, it is contended that, according to the doctrine of res ipsa loquitur, it became incumbent upon the defendants to establish that they had exercised that degree of care in the fulfilment of their duties to the plaintiff which would excuse them from any responsibility for his injuries. We cannot adopt the limited application of the doctrine of res ipsa loquitur for which the appellants contend. The appliance in question was shown to have been under the control of the defendants, and the accident was such as would not have happened in the ordinary course of events had proper care been used. It is in just such circumstances that the law allows the jury to draw the inference of fact that the defendant was negligent. If the circumstances afford a reasonable explanation and one wholly consistent with the exercise of due care on the part of the defendant the eviden — 155 — tiary value of the circumstances themselves as proof of negligence would be lessened. As we understand the .doctrine of res ipsa loquitur, it merely permits the jury to draw upon their experience in determining whether or not a given set of circumstances is consistent with the exercise of reasonable care on the part of the defendant. It takes the circumstances themselves as evidence of negligence, because it is reasonable to do so. Surely there can be nothing unreasonable in allowing the facts surrounding the accident in question to be weighed by the jury as circumstantial evidence of negligence on the part of the defendant. This is all that is accomplished by the doctrine of res ipsa loquitur. If any doubt existed upon this point in the instant case, it would be largely dispelled by taking into consideration the testimony of tho defendants’ own expert witnesses. The witness McGuire testified as follows: Q. If a bulb is defective or if the insulation is defective in an electric light, a man may receive an electric shock ? A. It is possible if it is defective. . . . Q. Is it not a fact that persons have received shocks while the light wás burning ? Turning it on ? A. Not from perfect insulation. . . . A. I said he would not receive a shock if the insulation were perfect. Q. If it is imperfect, would he ? A. Yes. Tho testimony of the expert witness Nelson is substantially to the same effect. There can be no doubt that, from the evidence descriptive 'of the accident itself, a jury would be warranted in finding that the accident was occasioned by an electric shock received by the plaintiff while handling an appliance which, in ordinary circumstances, would not have been sufficiently dangerous to occasion any injury; and when these circumstances are viewed in the light of the expert testimony, it cannot be said that the jury was unwarranted in inferring that something was wrong, with either the current or the appliance. The testimony of the defendants’ own witnesses goes far to establish that the defect, if any existed, was in the appliance; since it was shown by them — 156 — that perfect insulation would have prevented one handling the appliance from receiving a shock. The witness McGuire also testified that a current of 110 volts, which is that ordinarily used in lighting a building of this character, is what was supplied to the building in question. True, defendants’ evidence goes further to establish that the wire and socket found in the hands of the plaintiff were perfect in their insulation ; but it appears that several weeks elapsed between the time of the accident and the inspection of the wire and socket used as an exhibit in this case, and that they were in the control of the defendants during all of the time. As a general proposition, the credibility of an explanation offered to rebut a prima facie case afforded by an accident of this character is a question for the jury. Ourtis, Electricity, § 592. We are aware of no principle that requires the restriction of the doctrine of res ipsa loquitur to an extent which would preclude its application to a situation such as is presented in the instant case. On the contrary, we regard the principle as clearly applicable. Ourtis, Electricity, § 597. One of the principal eases relied upon by the appellants is that of Harter v. Colfax Electric Light & P. Co. 124 Iowa, 500, 100 N. W. 508, where it was said by the court: “The maxim, Bes ipsa loquitur, does not apply to such a case as this, for there is no evidence that the accident was due to a dangerous current knowingly or even negligently sent into the hotel by the defendant company.” But an examination of that case discloses that it is not an authority for such a limited application of the doctrine as the appellants contend for. The action in that case was against the power company which supplied the current; the wiring was in control of another and had been done by an independent agent; and the injury was occasioned primarily by the negligence of the person who had wired the premises, in fastening the wires so insecurely that they fell upon the plaintiff. Manifestly, under such circumstances, the jury would not be warranted in inferring negligence on the part of the defendants from the bare facts descriptive of the accident. As we view the record in this case, it cannot be said as a matter of law that the jury was not warranted, under all of the evidence, in find — 157 — ing that the plaintiffs injuries were caused by the negligence of the defendants. Finding no error in the record, the judgment of the District Court is affirmed.