Should courts be willing to presume negligence in situations where the plaintiff's injury implies negligence has occurred?
England. 2 Hurlstone and Coltman 722. Opinion by POLLOCK, C.B. BRAMWELL, B.; CHANNELL, B.; and PIGOTT, B.concurred, with CHANNELL writing separately.3
The plaintiff was walking in a public street past the defendant’s shop when a barrelof flour fell upon him from a window above the shop, and seriously injured him. Heldsufficient primâ facie evidence of negligence for the jury, to cast on the defendant theonus of proving that the accident was not caused by his negligence.~5
At the trial before the learned Assessor of the Court of Passage at Liverpool, theevidence adduced on the part of the plaintiff was as follows: A witness named Critchley said: “On the 18th July, I was in Scotland Road, on the right side going north, defendant’s shop is on that side. When I was opposite to his shop, a barrel of flour fell from a window above in defendant’s house and shop, and knocked the plaintiff down. He was carried into an adjoining shop. A horse and cart came opposite the defendant’s door. Barrels of flour were in the cart. I do not think the barrel was being lowered by a rope. I cannot say: I did not see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It struck him on the shoulder and knocked him towards the shop. No one called out until after the accident.” The plaintiff said: “On approaching Scotland Place and defendant’s shop, I lost all recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I was helpless for a fortnight.” (He then described his sufferings.) “I saw the path clear. I did not see any cart opposite defendant’s shop.” Another witness said: “I saw a barrel falling. I don’t know how, but from defendant’s.” The only other witness was a surgeon, who described the injury which the plaintiff had received. It was admitted that the defendant was a dealer in flour.8
It was submitted, on the part of the defendant, that there was no evidence ofnegligence for the jury. The learned Assessor was of that opinion, and nonsuited theplaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him with 50l. damages, the amount assessed by the jury.~9
POLLOCK, Chief Baron.10
There are certain cases of which it may be said res ipsa loquitur, and this seems oneof them. ~I think it would be wrong to lay down as a rule that in no case canpresumption of negligence arise from the fact of an accident. Suppose in this case thebarrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford primâ facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.11
So in the building or repairing a house, or putting pots on the chimneys, if a personpassing along the road is injured by something falling upon him, I think the accidentalone would be primâ facie evidence of negligence. Or if an article calculated to causedamage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are primâ facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is primâ facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.