Cleveland Ice Cream v. Call

Ohio Court of Appeals

Cleveland Ice Cream v. Call

162 N.E. 812, 28 Ohio App. 521, 6 Ohio Law. Abs. 610, 1928 Ohio App. LEXIS 478

CourtOhio Court of Appeals

DecidedApril 30, 1928

Docket8431

StatusPublished

Cited by2 cases

This text of 162 N.E. 812 (Cleveland Ice Cream v. Call) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cleveland Ice Cream v. Call, 162 N.E. 812, 28 Ohio App. 521, 6 Ohio Law. Abs. 610, 1928 Ohio App. LEXIS 478 (Ohio Ct. App. 1928).

Pincite

Opinion

*611 SULLIVAN, PJ.

There is credible evidence in the record, unchallenged, that the truck was in the habit daily, as a rule, of halting at the top of the hill in the road in question, where there was located a certain restaurant and on such occasions commodities connected with the ice cream industry were delivered by persons in charge of the truck or one similar to it, to the proprietor of the restaurant. Thus it is established in the record by credible evidence that the ownership of the truck was in The Cleveland Ice Cream Co., and that on these occasions when its goods were delivered, the truck and the driver thereof, was on the business of the company. These facts are sufficient to establish liability in the company because this truck, the property of the company on the business »of the company, was running wild without a driver, at the time of the collision which produced the injury. This we think, makes a clear case of res ipsa loquitur.

The principle of res ipsa loquitur imports that a prima facie case can he made out without any direct proof of actionable negligence.

Bien v. Unger, 46 Atl. 593, 64 N. J. Law 596.

This doctrine of law means that a jury is justified in a verdict based upon their know-edge as men of the world and that accidents like the one at bar do not happen excepting through some miscarriage of duty on the part of the defendant sought to be held, and the inference is established that it was the defendant’s fault unless it is justified, explained or excused in some manner and in the instant case there was no attempt to make any explanation whatsoever and therefore the inference and the cimeumstances deducible from the credible evidence in the case, are unchallenged and this doctrine is laid down in Pinney v. Hall, 156 Mass. 225.

The runaway truck in coming down the hill without anyone in control, speaks for itself and under the doctrine under discussion a jury has a basis for inferring that the negligence of the defendant was the cause of the accident.

There is no other rational conclusion to be reached from the collision in the instant case, under the circumstances and environment which surrounds it but that the defendant in error was lacking in the exercise of ordinary care. By reason of these premises we hold that sufficient negligence has been established by the record to show a prima facie case and inasmuch as there is no defense, this case remains unchallenged and undenied.

Holding these views, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)

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*611 SULLIVAN, PJ.

There is credible evidence in the record, unchallenged, that the truck was in the habit daily, as a rule, of halting at the top of the hill in the road in question, where there was located a certain restaurant and on such occasions commodities connected with the ice cream industry were delivered by persons in charge of the truck or one similar to it, to the proprietor of the restaurant. Thus it is established in the record by credible evidence that the ownership of the truck was in The Cleveland Ice Cream Co., and that on these occasions when its goods were delivered, the truck and the driver thereof, was on the business of the company. These facts are sufficient to establish liability in the company because this truck, the property of the company on the business »of the company, was running wild without a driver, at the time of the collision which produced the injury. This we think, makes a clear case of res ipsa loquitur.

The principle of res ipsa loquitur imports that a prima facie case can he made out without any direct proof of actionable negligence.

Bien v. Unger, 46 Atl. 593, 64 N. J. Law 596.

This doctrine of law means that a jury is justified in a verdict based upon their know-edge as men of the world and that accidents like the one at bar do not happen excepting through some miscarriage of duty on the part of the defendant sought to be held, and the inference is established that it was the defendant’s fault unless it is justified, explained or excused in some manner and in the instant case there was no attempt to make any explanation whatsoever and therefore the inference and the cimeumstances deducible from the credible evidence in the case, are unchallenged and this doctrine is laid down in Pinney v. Hall, 156 Mass. 225.

The runaway truck in coming down the hill without anyone in control, speaks for itself and under the doctrine under discussion a jury has a basis for inferring that the negligence of the defendant was the cause of the accident.

There is no other rational conclusion to be reached from the collision in the instant case, under the circumstances and environment which surrounds it but that the defendant in error was lacking in the exercise of ordinary care. By reason of these premises we hold that sufficient negligence has been established by the record to show a prima facie case and inasmuch as there is no defense, this case remains unchallenged and undenied.

Holding these views, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)

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Bluebook (online)

162 N.E. 812, 28 Ohio App. 521, 6 Ohio Law. Abs. 610, 1928 Ohio App. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-ice-cream-v-call-ohioctapp-1928.

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