#### Loomis *v.*The Toledo Railways & Light Co.

*Negligence*— Proof *to sustain presumption*— Falling *trolley pole strikes automobile*— Res *ipsa loquitur inapplicable,*when— Acf *of God*— Windstorm.

1. A presumption of negligence arises from proof of the falling of poles and electric wires upon the plaintiff’s automobile in a city street. The maxim, *res ipsa loquitur,*applies, requiring an explanation of the cause from the defendant. *(Cincinnati Traction Co.*v. *Holeenlcamp,*74 Ohio St., 379, approved.)

2. But where the proof raises a probability that such falling poles and wires were caused by a *vis major,*the presumption of negligence does not arise. In such ease the plaintiff must sustain his specific allegations of negligence by a preponderance of the evidence.

(No. 17657

Decided March 6, 1923.)

Error to the Court of Appeals of Lucas county.

This was an action for personal injuries, occurring about 4:30 p. m., March 28, 1920. A general verdict was returned in favor of the defendant, the railways and light company, and a judgment entered. On error to the court of appeals that court affirmed the judgment of the common pleas court, whereupon proceedings in error were instituted in this court.

In his petition for damages, the plaintiff below alleged that about 4:30 o’clock in the afternoon, on March 28,1920, he was driving his automobile along one side of Summit street, a public thoroughfare in the city of Toledo; that about midway between certain street intersections two of the poles and attaching wires of the defendant fell upon his automobile *162and damaged it to the extent of $421.72. It was alleged further that the railways and light company maintained these poles, with wires attached, over which an electric current of high voltage was transmitted, along Summit street; particularly at! the point where these poles and wires fell. It was alleged that the defendant was careless of the safety of those using the public thoroughfare, in that it negligently maintained such poles and wires over which the high voltage current of electricity was transmitted, and that the poles were rotten, decayed and in an unsafe condition, and the defendant negligent in maintaining them in such unsafe condition in close proximity to the street.

The defendant answering, admitted that in the conduct of its business it owned and maintained poles and wires over which electric current was transmitted, and that its poles and wires fell as alleged in the petition; but it expressly denied that the falling of the poles was due to any negligence on its part, as claimed in the petition. Answering further the defendant alleged that at the time stated in the petition there occurred a severe wind and rain storm in the city of Toledo, particularly' at the point where the poles fell, which “said storm was of an unusual and extraordinary character, and of such severity that it caused to fall poles and wires as aforesaid, without notice or warning to this defendant, and without the possibility of this defendant doing anything to avoid or prevent any damage which may have been occasioned thereby; that said storm, which caused said poles and wires to fall, was an Act of G-od for which this defendant is not responsible.” *163These affirmative allegations contained in the answer, relating to the severity and extraordinary character of the storm, characterized as an act of God, were denied by the reply.

The cause went to trial before a jury, chiefly upon the two main issues in the ease, whether the poles and wires fell because of the rotten and decayed condition, as alleged in the petition, or their falling was the result of an extraordinary storm resulting from an act of God, as alleged in the answer. Upon both of these issues there was conflict in the testimony;' but for the purposes of this case it is only necesary to revert to so much of the testimony as relates to the defense of the unusual and extraordinary character of the storm.

Upon that feature of the case it is sufficient to refer to the testimony of one W. S. Currier, a witne ss called by the plaintiff below. Currier was in charge of the weather bureau at Toledo, and had been there for a period of over twenty-five years. He produced his weather records, disclosing wind velocity not only for the day when the accident happened but for a period of ten years prior thereto. It is not clearly disclosed by the record whether the accident happened at 4:30 o’clock eastern or central time, but, assuming that it occurred at the former, Currier testified that the wind velocity at the time when the poles and wires fell was fifty-one miles. He further testified that in a period of ten years, including 1920, there were not fifteen days when this velocity was attained or exceeded; and in two of the intervening years there was not a single day when this velocity was attained. He also testified that at the same velocity there is often a difference in the result pro*164duced. When *questioned as to*whether this particular storm, on the 28th of March, 1920, was usual, or above the ordinary, he answered: “Well, I would say it was above the ordinary.” This testimony was supplemented by evidence offered by the defense, tending to show the extreme severity of the storm about 4:30 p. *m.*at the point where the injury occurred. At 4:35 p. mc. the trouble sheet of the company showed a call reporting that seven or eight poles had fallen at the same point. This testimony is alluded to, not alone because of the issues made by the pleadings, but also for the reason that the plaintiff below insists that the rule, *res ipsa loquitur,*should have been given in the charge to the jury, and that a failure to do so was error. Before argument the court gave to the jury the following request asked for by plaintiff.

“The term Act of God in its legal significance means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do.”

Also, after argument, the plaintiff presented a written request, which was refused by the court. This request is somewhat lengthy, but contains the following:

“You are further instructed that under the doctrine *res ipsa loquitur,*a presumption of negligence *165on the part of the defendant arises upon the plaintiff’s proving, if he does so prove by preponderance of the evidence, that a pole or poles of the defendant fell and injured his car on the afternoon of the day alleged in the petition. You are further instructed that under said doctrine of *res ipsa loquitur,*and in the event that plaintiff so makes such proof, the duty of producing evidence thereupon shifts to the defendant, so that it thereby becomes necessary for the defendant to relieve itself of that inference or presumption of negligence upon its part.”

In its general charge the court confined plaintiff’s recovery to proof of negligence in maintaining poles that were rotten, decayed or not of sufficient strength to support the wires, and charged the jury that mere proof of the falling of the poles and wires was not sufficient to entitle a recovery; that if ordinary care had not been used by the defendant under the circumstances, in that event plaintiff could recover. On the issue, act of God, the court in its general charge said to the jury: “"Where damages result, gentlemen, by reason of the happening of an event, or a series of events, which are inevitable, or when the damage is the result of an inevitable or unavoidable accident, without the intervention of the human agency of negligence, then there can be no recovery of damages from the resultant injury. In other words, when damage results from the happening of extraordinary floods, storms, or fires, or other events of such an unusual nature or of such severity that human foresight could not or would not reasonably anticipate as would probably occur, the event is classed in law as an Act of God; and if the damages *166resulting are due solely to such an event, there is then in law no right of recovery.”

*Messrs. Miller & Brady,*for plaintiff in error.

*Messrs. Tracy, Chapman é Welles,*for defendant in error.

Jones, J.

This case involves the question whether the court should have applied the maxim *res ipsa loquitur*under the state of facts presented at the trial. This rule was invoked by the plaintiff below in his special request after argument, which was refused by the court. In their brief, counsel for plaintiff in error state that the principal question involved here is whether the “doctrine of *res ipsa loquitur*applies where the poles and wires of an electric company fall into the street and damage the property of a person lawfully traveling upon such public highway.” If this were the real question in the case, an affirmative answer would he required under the decision of this court in *Cincinnati Traction Co.*v. *Holzenkamp,*74 Ohio St., 379, which held that the presumption of negligence arose where a trolley pole of an electric car fell upon a person standing in a public thoroughfare at the usual stopping place, and who was about to become a passenger. The solution of the question before us, however, depends not so much upon the case made in the petition as upon the case and facts presented at the trial. The real question presented is whether the plaintiff below was entitled to the application of the maxim *res ipsa*loquitur, where the proof offered tended to show at least as strong a probability that the injury *167was caused by the act of God as that it was caused because of lack of due care on the part of the defendant.

The gravamen of the plaintiff’s charge was negligence in maintaining poles that were rotten and decayed and not of sufficient strength to support the wires thereon. The answer of the defendant stated that the poles and wires fell because of a severe and extraordinary storm, amounting to a *vis*major> which the plaintiff denied. In fact these were the two main issues upon which the case went to trial. The witness Currier, who was in charge of the weather bureau, testified that at,this particular time the wind attained a velocity of fifty-one miles an hour in Toledo, and that within the next hour had attained a velocity of sixty miles per hour. This was a witness offered by the plaintiff. When asked whether this was a usual storm, or one above the ordinary, he said ‘ ‘it was above the ordinary. ’ ’ Evidence offered by the defendant later corroborated and supplemented this testimony by further proof tending to show that the injury was caused by an act of God.

In view of the case thus presented, was the plaintiff below entitled to the instruction as requested, that a presumption of negligence arose by proof “that a pole or poles of the defendant fell and injured his ear on the afternoon of the day alleged in the petition?” In negligence cases the rule is general that specific acts of negligence must be proved by the plaintiff. Exceptions have been made in some cases, and affirmative proof of negligence is dispensed with where the physical facts producing injury justify the court and jury in inferring negli-. *168gence as a proximate cause of the accident. In snch cases the maxim, *res ipsa loquitur,*applies. In the courts of this country it is generally applied in cases where the relation of carrier and passenger exist and the accident arises “from abnormal condition in the department of actual transportation.” (2 Thomas on Negligence [2 ed.], 1095.) As stated by the same author, the maxim is also applied “Where the injury arises from some condition or event, that is in its very nature so obviously destructive of the safety of person or property, and is so tortious in its quality, as in the first instance, at least to permit no inference, save that of negligence on the part of the person in the control of the injurious agency.”

This application of the rule has been approved in the various textbooks, and by the case of *Benedict*v. *Potts,*88 Md., 52, 56. In cases where the maxim is applied it easts upon the defendant the duty of explaining the cause of the injury. However, it never has the effect of shifting the burden of proof. *“Res ipsa loquitur,*means that the facts of the occurrence warrant an inference of negligence, not that they compel such an inference, nor does *res ipsa loquitur*convert the defendant’s general issue into an affirmative defense.” *Sweeney*v. *Erving,*228 U. S., 233, and *Klunk*v. *H. V. Ry. Co.,*74 Ohio St., 125.

Whether the testimony touching the cause of the injury is of such evidentiary value as to raise the presumption of negligence, under the maxim *res ipsa loquitur,*is for the court. (4 Wigmore on Evidence, Section 2507 *et seq.)*The lord chancellor, in *Metropolitan Ry. Co.*v. *Jackson,*3 L. R. App. Cases, 193, at page 197, thus stated the rule which is gen*169erally supported: “The Judge has to say whether any facts have been established by the evidence from which negligence *may be*reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence *ought to be inferred*

The rule is a rule of evidence, and arises from probabilities reasonably inferred from the character of the accident itself. It rests upon the presumption that when an instrumentality under the control of the defendant causes the injury, and such injuries do not ordinarily happen in the course of events if due care is exercised, then a presumption arises, in the absence of explanation by the defendant, that the accident was caused by want of care. Having this rule and its application in view, how can it be said, when the proof offered tends to show that the accident was caused by another than the defendant, that a conclusive presumption arises, without other specific proof, that the accident was caused by the defendant? Necessarily the reason for the rule fails. The author in 1 Sherman & Bedfield on Negligence (6 ed.), Section 58b, discussing the doctrine of *res ipsa loquitur,*says: “The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. If from the nature of the event causing the injury an enquiry naturally arises which one of two or more persons, acting independently, is responsible; or, if it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms.”

“The maxim *res ipsa loquitur*relates merely to negligence *prima facie*and is available without ex-*170eluding all other possibilities, but it does not apply where there is direct evidence as to the cause, or where the facts are such that an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as that it was due to his negligence.” *29*Cyc., 624.

“Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the injury, but show a state of affairs from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligent act of defendant, the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances, nor is defendant called upon to explain the cause of the accident or purge itself of the inferential negligence. The doctrine of *res ipsa loquitur*does not apply in such case.” *McGrath*v. *St. Louis Transit Co.,*197 Mo., 97.

“And a careful analysis of the better considered decisions shows that negligence will not be presumed from the mere fact of injury, when that fact is as consistent with a presumption that it was unavoidable as it is with negligence; and therefore, if it be left in doubt what the cause of the accident was, or if it may as well be attributable to the act of God or unlmown causes as to negligence, there is no such presumption.” 20 Ruling Case Law, 185, Section 155.

In *Chicago Union Traction Co.*v. Crosby, 109 Ill. App., 644, the syllabus is as follows: “Where an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and *171applied by it, a presumption of negligence on its part is raised; but if the accident is due to a cause beyond tbe control of tbe carrier, as the presence of *vis major,*or the tortious act of a stranger, no such *prima facie*case is made out as will throw upon the carrier the burden of showing that it was not guilty of negligence.”

Substantially the same principle is sustained in *St. Louis & S. F. Rd. Co.*v. *Burrows,*62 Kans., 89, in the first proposition of the syllabus, as follows: “In an action by a passenger against a common carrier to recover for personal injuries received while traveling in a conveyance of the latter, proof of the accident and plaintiff’s injury casts the burden on the carrier to free itself from the presumption of negligence. The gist of the action being the negligence of the defendant, the above rule is not applicable in such suit against a railway company where the evidence introduced by the plaintiff shows that the accident resulted from an act of God, unavoidable casualty, or from causes not connected with the construction, operation or maintenance of the railway. ’ ’

Having in view the genesis of the maxim and the reasons for its adoption, how can it possibly apply in a case where there is evidence definitely supporting the defendant’s claim that the accident happened by reason of a *vis major,*causing the poles and wires to fall upon the automobile of the defendant?

In its general charge the court said that the plaintiff was not entitled to recover simply because the poles and wires fell. Manifestly this was not preju*172dicial. If the evidence touching the defective character of the poles were ignored, the most that plaintiff below could claim from the evidence would be that the cause of the poles falling was conjectural, in which situation it has been held that “if causes other than the negligence of the defendant might have produced the accident, the plaintiff is bound to exclude the operation of such causes by a fair preponderance of the evidence.” *Wadsworth*v. *Boston Elevated Ry. Co.,*182 Mass., 572, and *Searles*v. *Manhattan Ry.*Co., 101 N. *Y.,*661.

An inspection of the record discloses that the plaintiff chiefly relied, as a basis for negligence, upon the claim that the poles upholding the wires were rotten, decayed and of insufficient strength. "While this was denied, one of the chief elements of the defense was that these poles fell because of an extraordinary storm amounting to a *vis major.*This feature of the defense was recognized as a vital one by the plaintiff below who requested a special charge upon the subject. From the testimony offered by defendant it appears that on that afternoon, about the time of the injury, great damage had been done in the city and vicinity. This was featured in several pages of an issue of a large daily paper. However, the greatest velocity of the storm occurred after 1:30 r. m.

Under the court’s instructions, the cause went to the jury upon two phases of the controversy: Was the defendant negligent in maintaining the poles and wires as alleged; or was the accident caused by an event described in the instructions as an act of God? Upon these issues the jury returned a general verdict for the defendant. There could be no *173possible prejudicial error therefore in eliminating from the case the application of the maxim, *res ipsa loquitur.*

The judgment of the court of appeals is affirmed.

*Judgment affirmed.*

Robinson, Matthias and Day, JJ., concur.

Marshall, C. J., and Allen, J., concur in the judgment.

Wanamaker, J., dissents.