Louis J. NIEMAN and Mabel Nieman, husband and wife, Appellants,
Harry L. JACOBS, Ancillary Executor of the Estate of B. Goodman dba Santa Rita Hotel, Appellee.
[87 Ariz. 45] Conner & Jones by James M. Murphy, Tucson, for appellants.
[87 Ariz. 46] McCarty, Chandler & Udall, Tucson, for appellee.
The plaintiff-appellants sued for damages for personal injuries sustained by Mabel Nieman as a result of the alleged negligence and carelessness of the defendant-appellee in the operation of a passenger elevator located in the Santa Rita Hotel in Tucson, Arizona. The action was tried before a jury and upon the conclusion of the plaintiff's case, on motion of the defendant, the court directed a verdict in favor of the defendant. This appeal follows. Briefly, the facts the jury might have found are these:
The plaintiffs were descending with others from the fifth floor to the main floor of the defendant's hotel in an elevator operated by one of the defendant's employees. The elevator slipped past the main floor, about two feet, and the operator was unable to raise it level with the floor of the building. The operator was able, however, to open the elevator door and she is reported to have said, 'it is stuck again. You will have to step up.' There was a good light in the elevator and the light in the lobby or main floor was good. The position of the elevator was obvious, as was the fact that the door space in the elevator was diminished. The plaintiff, Mrs. Nieman, at first refused to leave the elevator stating that she did not want to ruin her stockings. Thereafter, the elevator operator left the car stating that she would go get either the manager or the bell captain. Mrs. Nieman watched both the operator and another passenger stopp over and go through the door. One of the passengers climbed out and then reached down and took Mrs. Nieman's hand to assist her out of the elevator; she placed one foot on the floor above, gave her hand to the man who preceded her and as she thus attempted to leave the car, her head struck the top of the door frame of the elevator, giving rise to the injury complained of herein.
Plaintiffs have made only one assignment of error, as follows:
'The lower court erred in directing a verdict in favor of the defendant and against the plaintiffs in refusing to grant a new trial herein, for the reason that the evidence conclusively showed that the plaintiffs were entitled to have this case go to the jury inasmuch as the defendant violated a duty owed to the plaintiffs by negligently operating a passenger elevator in violation of the high degree of care required to avoid injury to passengers riding therein.'
Actually, the only issue for this Court to determine is whether the plaintiffs have produced evidence legally sufficient to sustain a verdict based on the alleged negligence of the defendant. Lazear v. Pendergrass, 39 Ariz. 111, 4 P.2d 386 and Nichols [87 Ariz. 47] v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201. In considering this question, we must
take the evidence as strongly as is reasonably possible in favor of the plaintiffs. Keeler v. Maricopa Tractor Co., 59 Ariz. 94, 123 P.2d 166 and Nichols v. City of Phoenix, supra. We must determine whether under any theory of the case plaintiffs were entitled to have their cause go to the jury.
Absent the special evidentiary rule of res ipsa loquitur, a plaintiff in a negligence action, in order to withstand a motion for directed verdict at the close of its case, must make out a prima facie case of actionable negligence; to-wit, plaintiff must show the existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately caused by such breach. Dungan v. Brandenberg, 72 Ariz. 47, 230 P.2d 518; Krysiak v. Acme Wire Co., D.C.N.D.Ohio 1959, 169 F.Supp. 576. Assuming the duty owed plaintiffs by defendant in the instant case, there is no evidence in the record specifying the particular manner in which defendant breached that duty. Plaintiffs offered no proof of the particulars of defendant's alleged negligence. Rafferty v. Northern Utilities Co., 73 Wyo. 287, 278 P.2d 605; Krysiak v. Acme Wire Co., supra. By their evidence produced in the course of the trial, plaintiffs established little more than that the elevator in fact did not operate properly and that Mrs. Nieman sustained injury while attempting to leave it. The situation, therefore, falls squarely under the rule that negligence may not be presumed from the mere fact that an accident has occurred or that an injury has been sustained, Hoskins v. Hoskins, Ky., 316 S.W.2d 638; In re Mueller's Estate, 166 Neb. 376, 89 N.W.2d 137; Sheptur v. Procter & Gamble Distributing Co., 6 Cir., 1958, 261 F.2d 221; Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.W.2d 300, nor from mechanical failure alone, Rodin v. American Can Co., 133 Cal.App.2d 524, 284 P.2d 530; Rafferty v. Northern Utilities Co., supra. If we go on to assume, however, that defendant was negligent, we must at the same time hold that plaintiffs failed to establish a prima facie case of actionable negligence. Krysiak v. Acme Wire Co., supra.
We will next consider whether plaintiffs are entitled to the benefit of the doctrine of res ipsa loquitur. The evidentiary function of the doctrine and its effect upon an attempt to direct a verdict in favor of the defendant at the close of a plaintiff's case has been described in prior decisions by this Court:
'The fact that the plaintiff may, in a proper case, rely on this rule does not mean, however, that he is excused from proving negligence, for there is no exception to the rule that one seeking damages for an injury caused thereby must establish that negligence by a [87 Ariz. 48] preponderance of the evidence. It is true the purpose of the rule of res ipsa loquitur is to aid the plaintiff in a proper case in making this showing by supplying sufficient proof of negligence to require a defendant claiming that the accident did not occur through any fault of his to produce evidence to show this and take the case to the jury.'
Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 64, 68 P.2d 952, 954; Sawyer v. People's Freight Lines, Inc., 42 Ariz. 145, 22 P.2d 1080. The doctrine, therefore, if applicable, would compel us to remand for a new trial.
Briefly stated, the requirements of res ipsa loquitur are these: the thing which causes the injury must be under the exclusive control of the defendant; the injured person must be without fault; and the injury must be such as in the ordinary course of things does not occur if one having such control uses proper care. Jesionowski v. Boston & Maine R. R., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Phen v. All American Bus Lines, Inc., 56 Ariz. 567, 110 P.2d 227; Rodin v. American Can Co., supra; Weigand v. Pennsylvania R. Co., D.C.W.D.Pa.1958, 166 F.Supp. 843, reversed on other grounds 3 Cir., 1959, 267 F.2d 281; Mecum v. Food Machinery & Chemical Corp., W.Va., 103 S.E.2d 897. At this point, returning to the facts of the present case, we
note that Mrs. Nieman was injured not by the fall of the elevator, but in her attempt to leave it. A jury under such facts might well determine that this injury was the proximate result of negligence attributable to defendant; on the other hand, it might equally as well determine that the condition confronting Mrs. Nieman was obvious and that, therefore, any injuries suffered by her were the result of her own negligence. Lewis v. Dequesne Inclined Plane Co., 346 Pa. 43, 28 A.2d 925. While we express no opinion on the merits of these two possibilities we must note that 'if * * * there are two concurring causes of the accident * * * and there is no evidence it was any more likely that the injury was caused by the negligence of defendant than by that of the stranger, the rule (of res ipsa loquitur) does not apply.' Phen v. All American Bus Lines, Inc., supra [56 Ariz. 567, 110 P.2d 228]. This statement is nothing more than a reiteration of the rule that the doctrine of res ipsa loquitur does not apply where the facts shown are equally consistent with the hypothesis that the injury sued for was caused by negligence of either party or of both combined. Cosden v. Wright, 202 Okl. 211, 211 P.2d 523; Estes v. Estes, Mo.App., 127 S.W.2d 78; Shaughnessy v. Boston & M. R. R., 222 Mass. 334, 110 N.E. 962. 'Where an injury may have occurred in more than one way, neither the court nor the jury may presume that it happened in the manner which would give rise to liability. Said in another way, the proximate cause of [87 Ariz. 49] an injury must be established by the one seeking to recover therefor; and where two or more reasonable inferences may be drawn from established facts, it cannot be presumed that the injury occurred in the manner which would give rise to liability.' Kletrovetz v. Grant Hospital, 105 Ohio App. 236, 152 N.E.2d 149, 151. See also, Simmons v. F. W. Woolworth Co., 163 Cal.App.2d 709, 329 P.2d 999.
It is thus readily apparent that the presence of a proximate cause issue is the reason underlying the rule that res ipsa loquitur will not be invoked where the facts infer that a plaintiff's injuries may have been caused by its own conduct. With regard to the requirement of proof of proximate cause, we cite with approval the following passage from the recent case of Cook v. United States, D.C.M.D.Ala.1958, 163 F.Supp. 784, 786:
'One basic and primary element of every action ex delicto is proximate cause, and until this element is proven, it is impossible to invoke the doctrine of res ipsa loquitur. This is true, both as a matter of law and as a practical matter. The purpose of the doctrine of res ipsa loquitur is to supply the element of negligence in actions ex delicto and in no way supplies the element of proximate cause or causation. See Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231. Therefore, until the plaintiff proves what act caused the injury, he could not possibly invoke the doctrine of res ipsa loquitur to supply the element of negligence so as to presume an act (which has not been proven) was negligent * * * Even if this Court, in an effort to extend the plaintiff every possible doubt, were to invoke the doctrine of res ipsa loquitur and say that the aircraft was operated negligently, then this Court would still be faced with the failure of the plaintiff to prove the element of causation, and this Court would have no evidence before it upon which to find that this negligence ...