Luckhurst v. Gimbel Bros.

38 Pa. Super. 281, 1909 Pa. Super. LEXIS 126

• Court: Superior Court of Pennsylvania
• Decided: February 26, 1909
• Docket: Appeal, No. 91
• Status: Published

Opinion

Opinion by

Henderson, J.,

The defendant contends that the maxim, res ipsa loquitur, applies- in this case and that there was no issue of fact for the jury. If the plaintiff’s case rested on the happening of the accident alone it would be necessary to consider and determine the applicability of the principle invoked by the appellant. It is true the plaintiff did not undertake to show the particular defects which caused the chair to give way, but the defendant’s evidence does throw light on that subject, for the chair which caused the accident was brought into court and exhibited to the jury. Its constructon was also described to some extent from which it appears that it was what is known in the trade as a bentwood chair, the legs of which were supported by a circular brace, described by one of the witnesses as a “runaround.”8 Screws were used to hold the legs in place and were necessary to the stability of the chair, as was shown by the evidence of two or three of the'witnesses. It was in the possession of the.defendant or ■its employees from the time of the accident until it was brought into court, at which time several of these screws were missing ■and if they or some of them were not in the chair at the time the ■plaintiff was hurt the accident might be readily accounted for. The defendant offered evidence that they were in place at the time the accident occurred, and one of the witnesses undertook to account for their absence at the time of the trial by stating that the chair had been at the office of the defendant’s counsel and that they were probably lost there. This, of course, was a purely conjectural explanation, and in view of the fact that the defendant had the custody of the chair might not have been at all satisfactory'to the jury. It appeared that screws in some of the chairs in the restaurant became loose from time to time, as a result of which the chairs became “rickety” and were removed for repairs. It was an important fact, therefore, that these screws were missing from the chair in question when it was first brought to the attention of other persons than the defendant’s employees after the accident. The defendant’s evidence was to the effect that each chair was inspected every morning and if found “shaky” it was taken away. As there were about 600 to be examined and the inspection was made by two or three men in two hours the matter of the carefulness of the examination was peculiarly a question for the jury. There was also evidence that of the 600 chairs about 100 were “braced up with wire” to strengthen them. Whether the chair in question was so repaired does not appear from the oral evidence. The credit to be given to the explanations made by the defendant’s witnesses'in view of the circumstances was for the jury, and this evidence taken in connection with the condition and appearance of the chair at the trial could form a basis for the jury’s finding on affirmative proof that the plaintiff’s injury was a result of the defendant’s failure to exercise due care in providing its guest with a substantial chair; and in that case the condition of the chair exhibited would be directly .contradictory of the defendant’s employees who testified that they had examined it before the accident and found it in good order.

■ These considerations answer the appellant’s second proposition that the defendant’s evidence conclusively rebutted any presumption of negligence arising from the mere happening of the accident. The court would not have been warranted in instructing the jury that the defendant had exonerated itself from liability. On the whole case we are- of the opinion that the question of the defendant’s negligence was one of fact for the jury-

The judgment is affirmed.