Appeal from the Circuit Court of Madison county; the Hon. R.W.
GRIFFITH, Judge, presiding. Affirmed in part and reversed in
JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 25, 1956.
Melvin C. Foster, the plaintiff, was injured while working for the defendant, Terminal Railroad Association of St. Louis, switching cars within the premises of the defendant, Union Starch & Refining Co. The jury returned a verdict against said Starch Co. in the amount of $15,000 and found the Railroad Association not guilty. The trial court then entered judgment on the verdict as to the Railroad Association, but, on motion of the defendant, Starch Co., entered judgment notwithstanding the verdict in its favor, or, in the alternative, granted a new trial to this defendant.
The plaintiff is now appealing against both defendants, contending as against the Starch Co. that the case presented a jury question, that the facts were such as to come within the doctrine of res ipsa loquitur, and that the trial court was in error in granting a judgment notwithstanding the verdict, or in the alternative a new trial. As against the Railroad Association, plaintiff contends that an instruction given by said defendant so misstated the law that the jury had no alternative but to render a verdict against the manifest weight of the evidence, and that the trial court was in error in not granting plaintiff's motion for a new trial.
Consideration of the case against the Starch Co. requires a review of the testimony. Plaintiff testified that, on the afternoon in question he was engaged in switching loaded cars from this defendant's dock and replacing them with empties. While riding on the rear stirrup of a car loaded, or partially loaded, with the defendant's products, he heard a rumbling sound above him, continuous for a few seconds as if something were rolling or falling, then an object struck him on the head and shoulder, causing the injury complained of.
The object was identified and introduced in evidence. It is described as a pinch bar, made of hexagonal steel, variously estimated as between 3 and 4 feet long, and an inch in diameter, one end turned at an angle of 45 degrees and flattened, and the other end turned slightly and tapered. (By actual measurement, the bar is 42 inches long.)
The car in question had come onto the premises the prior morning empty and had been loaded by this defendant. Several witnesses for plaintiff testified that the bar in evidence was the same as those used by this defendant in moving drums of glucose in the plant, on the loading dock, and in cars to wedge them closer together, and the Starch Company used such bars in varying lengths. Sometimes they were used to pry open a car door. Several witnesses for this defendant denied that this type of bar was used by the company. One of them, a blacksmith who made the bars for this defendant from hexagonal stock, testified that all this company's bars were longer, and he had never made a bar like the one in evidence.
On cross-examination, this witness conceded that he made bars to order in lengths of 4, 4 1/2 and 5 feet, and that sometimes bars are reground after use, that this bar had been in use for some time. He made them of hexagonal steel with one end turned at an angle of 45 degrees and flattened, and the other end turned and tapered.
Witnesses for the railroad testified that their company also used bars, but of shorter length, about 30 inches, and a long bar of 1/2 inch stock; that they never used a bar like the one in evidence. Counsel for defendant Starch Co. quote a railroad witness as saying: "We have bars similar to that. We have used bars similar to that." This quote is lifted from the following context: "I have never seen a bar like Plaintiff's Exhibit 1 on Terminal Property. We don't use that type of bar. . . . I have never seen that type of bar that heavy and that diameter. We have bars similar to that. They don't use that type of bar. I have never seen it. We have used bars similar to that."
Another witness testified he had formerly worked for defendant Starch Co., and had seen bars similar to Plaintiff's Exhibit 1 in this company's premises, and later he worked in the blacksmith shop and had worked on pinch bars 4 or 5 feet long, also smaller ones, 2 to 2 1/2 feet.
No attempt is here made to refer to all witnesses who testified about the type of bars in use. It suffices to say that the testimony on this subject is highly conflicting.
The argument of plaintiff and of defendant Starch Co. is largely an elaborate discussion of the law of res ipsa loquitur. Plaintiff, however, also discusses the circumstantial evidence in the case and cites decisions which make no reference to res ipsa, such as Lindroth v. Walgreen Co., 407 Ill. 121, Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 916, 66 Sup. Ct. 740. Reference is also made to the rule that custody and control may be proved by circumstantial evidence. The argument of defendant Starch Co. practically ignores all the circumstantial evidence and emphasizes the rule of res ipsa loquitur.
Any research into res ipsa loquitur will disclose that there is a great deal of confusion of thought in this field, some of it engendered by the alacrity with which courts seize upon a name as a tag for some proposition, with resultant loss of logic. On the other hand, many courts have striven to enunciate a logical distinction between this principle and ordinary cases of circumstantial evidence. This is a difficult and precarious task, because of the infinite varieties of cases which arise, and do not clearly fall into either arm of the supposed distinction. In Michigan it has been held that there is no separable principle of res ipsa loquitur and its existence is denied. Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329, 57 A.L.R. 262. In New York it is said to be but a part of the rules of circumstantial evidence. Marceau v. Rutland R. Co., 211 N.Y. 203, 105 N.E. 206, 51 L.R.A. (N.S.) 1221.
We believe there is an appropriate, but narrow, field for the doctrine of res ipsa loquitur, that the instant case does not fall in that field and can be demonstrated to be a case of circumstantial evidence. This evidence presents two questions: (1) does the evidence prove or tend to prove that somebody was negligent? (2) ...