Bracero v. S. Ramírez & Co.

41 P.R. 412

Opinions

Mr. Justice Wolf

delivered the opinion of the Court.

In an action to recover damages for injuries arising from hags of rice suddenly falling upon plaintiff within a certain shop, the defendant alleged and attempted to show that it did not have the ownership or control of the shop and, furthermore, that the plaintiff was a workman employed by the owners of the shop and hence hound to make his claim under the "Workmen’s Compensation Act.

The court found that the plaintiff was an independent contractor as the whole evidence tended to show and we shall not stop to assemble the proof.

The evidence was not quite so strong with respect to ownership of the shop. It was located in Ponce. The articles of incorporation showed that the defendant was authorized to have a branch in Ponce; it admitted that Cintron was the selling agent in Ponce and there was evidence tending to show that people having dealings with the shop had accounts presented in the name of the defendant. The direct and cir- eumstantial evidence was sufficient to justify tlie finding of tlie court below tliat the defendant had a branch in Ponce. We do not give the foregoing points greater attention because the case must be reversed on another ground.

We are not at all satisfied with the briefs of the parties. The brief of the appellant does not contain a “concise” statement of the case as required by Rule 42 and emphasized by our jurisprudence. Gandía v. Pizá Hermanos, 17 P.R.R. 880; Fajardo Development Co. v. Zalduondo, 20 P.R.R. 237; Díaz et al. v. Cividanes, 29 P.R.R. 541, and Ferrer & Son v. Am. R. R. Co., 39 P.R.R. 36. As in many other cases the appellant summarizes at considerable length the pleadings and the testimony of the witnesses and argues the effect while presenting such testimony and only on page 41 of the brief do we find the assignment of errors. It should be a very rare case where the assignment of errors is postponed beyond the third or fourth pag’e of the brief and arguments as to the effect of the evidence should always follow rather than precede the assignment of error. On the other hand the appellant strongly insisted that there was no proof of negligence.

The appellee met this assignment of a lack of negligence by arguments of what this court generally did in cases of conflict in the evidence and then finally maintained that it .was a case of res ipsa loquitur. The court below did not base its decision on the ground of res ipsa loquitur. Yet the ap-pellee discusses not at all the doctrine of res ipsa loquitur as applied to the facts of the case, nor does he attempt to present the evidence tending to show the negligence as generally found by the court.

■ This was a case where the evidence tended to show that Angel Bracero, an independent contractor, was hired by the defendant to remove some bags of rice from a certain shop in Ponce, belonging to the defendant; that when he came to the shop a second time to remove bags of rice and while his back was turned, about thirty bags of rice from the pile fell upon him. and injured Mm. The uncontradicted evidence tended to show that not only was there a second visit of Bracero to the pile, but that other workmen were removing sacks irom the same pile.

Now the doctrine of res ipsa loquitur presumes that the accident could not normally have happened if the defendant lad been in the exercise of due care. It throws the burden of proof on the defendant. The courts are loath to apply the doctrine when there is direct evidence of negligence, although ■of course when the doctrine is raised slight evidence of negligence would not exclude its application. Likewise it may be said that the doctrine is applied as a rule only when the thing that caused the accident is under the exclusive control of a defendant or perhaps that the situation is such that the defendant is bound to explain.

If on invitation someone without more had entered the shop of the defendant and the pile of bags had fallen on him, res ipsa loquitur would be applicable. A different situation is presented when persons other than the defendant have intervened and especially when, as here, the plaintiff himself has intervened. Non constat that the accident would not have happened if the plaintiff and the other workmen had not extracted sacks from the pile. The plaintiff was bound to show by a clear preponderance of the evidence that for the application of the doctrine the intervention extraneous to that of the defendant was harmless. The defendant offered evidence tending to show that the pile had been carefully erected, although we do not base our decision on this evidence.

One witness testified that he told defendant’s agent that the pile was defectively constructed. This was at least some time before the happening of the accident. We are still discussing res ipsa loquitur. Naturally, nothing that this witness says shows the state of affairs at the time of the accident. Non constat that the defendant’s agent, if he acted as a prudent man, as presumptively he was, corrected the defect. The evidence tended to show besides that the plaintiff was an expert in handling piles of rice.

We find no reason for the application of res ipsa loquitur and we question if it can be invoked for the first time in this court. The court below said:

“It has also been shown that the pile of sacks which caused the accident had been constructed by the employees of the defendant in. a very defective manner and that apparently the pile did not show any danger, nor was the plaintiff warned at any time by the employees of the defendant of the defective formation of the pile and that the accident took place while the plaintiff had his back turned to the aforesaid pile of bags of rice.

“It has been shown moreover that the accident was due solely and exclusively to the guilt and negligence of the defendant in making defective piles of bags of rice in his warehouse and in not warning in any way the plaintiff Bracero in regard thereto.”

It is evident that the court was not applying the doctrine-

We agree with the appellant that the record shows no negligence attributable to the defendant at the time of the accident and the judgment should be reversed. »