CITE TITLE AS: Martin v Herzog

Negligence Highway Law --- Driving a vehicle at night on public highway without lights is negligence --- Erroneous charge

1. Where a case has been tried and argued on the assumption of a certain fact, it is not important whether that fact might have been a question for the jury. A controversy put out of a case by the parties is not to be put into it by the court.

2. Evidence of a collision occurring more than an hour after sundown between an automobile and an unseen buggy, proceeding without the lights required by the statute (Highway Law [Cons. Laws, ch. 25], § 329-a, as amended by L. 1915, ch. 367), is evidence from which a causal connection may be inferred between the collision and the lack of signals.

3. Where, in an action to recover for the death of plaintiff's intestate, killed in a collision between a wagon in which decedent was riding at night and an automobile, negligence was charged against the driver of the car in that he did not keep to the right of the center of the highway, and negligence against decedent, who was driving the wagon, in that he was traveling without lights as required by the statute, it was error for the court to charge, at plaintiff's request, that ‘the fact that the plaintiff's intestate was driving without a light is not negligence in itself.‘ They should have been told not only that the omission of the lights was negligence, but that it was ‘prima facie evidence of contributory negligence,‘ i. e., that it was sufficient in itself, unless its probative force was overcome, to sustain a verdict that the decedent was in fault. Martin v. Herzog, 176 App. Div. 614, affirmed.

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1917, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. Hugh A. Thornton and Martin J. Tierney for appellant. The omission of plaintiff's intestate to have a light upon his vehicle was not prima facie evidence of contributory negligence by him. (Amberg v. Kinley, 214 N. Y. 531; Barr v. Green, 210 N. Y. 252; Kelly v. N. Y. S. Rys. Co., 207 N. Y. 342; Mariano v. Lehmaier, 173 N. Y. 530; Donnelly v. City of Rochester, 166 N. Y. 315; Graham v. Manhattan Ry. Co., 149 N. Y. 336; McRickard v. Flint, 114 N. Y. 222; Briggs v. N. Y. C. & H. R. R. R. Co., 72 N. Y. 26; McGrath v. N. Y. C. R. R. Co., 63 N. Y. 522; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Flucker v. Zeigle Brewing Co., 201 N. Y. 40; Orr v. Baltimore & O. R. Co., 168 App. Div. 548; Shields v. Pugh & Co., 122 App. Div. 586; Koch v. Fox, 71 App. Div. 288; Buys v. Third Ave. R. R. Co., 45 App. Div. 11; McCambley v. Staten Is. M. R. R. Co., 32 App. Div. 346; McCauley v. Schneider, 9 App. Div. 279; Fox Constr. Co., Inc., v. Dailey's Towing Line, Inc., 180 App. Div. 593; Fitten v. Sumner, 176 App. Div. 617; Karpeles v. Heine, 227 N. Y. 74.) The court's charge in reference to contributory negligence was correct in every respect and not prejudicial error. (Kelley v. N. Y. C. Rys., 207 N. Y. 342; Mendelson v. Van Rensselaer, 118 App. Div. 516; Barr v. Green, 210 N. Y. 252; Amberg v. Kinley, 214 N. Y. 531.)

Herbert C. Smyth, Roderic Wellman and Alfred W. Andrews for respondent. The refusal to charge defendant's request, that the absence of a light on the buggy was prima facie evidence of contributory negligence, was prejudicial error. (Amberg v. Kinley, 214 N. Y. 531; Racine v. Morris, 201 N. Y. 240; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535; Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 N. Y. 90; Lewis v. L. I. R. R. Co., 162 N. Y. 52; Huda v. Am. Glucose Co., 154 N. Y. 474; Lambert v. S. I. R. R. Co., 70 N. Y. 164; Fisher v. Vil. of Cambridge, 133 N. Y. 527.)

CARDOZO, J.

The action is one to recover damages for injuries resulting in death.

Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant's automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom.

Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway (Highway Law, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25). Negligence is charged against the plaintiff's interstate, the driver of the wagon, in that he was traveling without lights (Highway Law, sec. 329a, as amended by L. 1915, ch. 367). There is no evidence that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and looking in the direction of the plaintiff's approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.

We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury (Todd v. Nelson, 109 N. Y. 316, 325). A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light ‘in determining whether the plaintiff's intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.‘ The defendant requested a ruling that the absence of a light on the plaintiff's vehicle was ‘prima facie evidence of contributory negligence.‘ This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that ‘the fact that the plaintiff's intestate was driving without a light is not negligence in itself,‘ and to this the court acceded. The defendant saved his rights by appropriate exceptions.

We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 538; Marino v. Lehmaier, 173 N. Y. 530, 536; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40; Prest-O-Lite Co. v. Skeel, 182 Ind. 583, 600, 601; Newcomb v. Boston Protective Dept., 146 Mass. 596; Bourne v. Whitman, 209 Mass. 155, 163). Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought (Pollock Torts [[[10th ed.], p. 458; Clark & Linseil Torts [6th ed.], p. 493; Salmond Jurisprudence [5th ed.], pp. 351, 363; Texas & Pac. Ry. Co. v. Rigsby, supra, p. 43; Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559). In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed (Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283; Kelley v. N. Y. State Rys. 207 N. Y. 342; Ward v. Hobbs, 4 App. Cas. 13). Some relaxation there has also been where the safeguard is prescribed by local ordinance, and not by statute (Massoth v. D. & H. C. Co., 64 N. Y. 524, 532; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488). Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism (Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra). Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself (Massoth v. D. & H. Canal Co., supra; and cf. Cordell v. N. Y. C. & H. R. R. R. Co., supra). In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to ‘consider the default as lightly or gravely‘ as they would (THOMAS, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman (Scott v. International Paper Co., 204 N. Y. 49; Fitzwater v. Warren, 206 N. Y. 355; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and being wholly unexcused was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. ‘Proof of negligence in the air, so to speak, will not do‘ (Pollock Torts [10th ed.], p. 472). We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals (Lambert v. Staten Island R. R. Co., 70 N. Y. 104, 109, 110; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58; The Pennsylvania, 19 Wall. 125, 136, 137; Fisher v. Village of Cambridge, 133 N. Y. 527, 532). If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference, but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told not only that the omission of the lights was negligence, but that it was ‘prima facie evidence of contributory negligence,‘ i. e., that it was sufficient in itself unless its probative force was overcome (THOMAS, J., in court below) to sustain a verdict that the decedent was at fault (Kelly v. Jackson, 6 Pet. 622, 632). Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for, and refused.

We are persuaded that the tendency of the charge and of all the rulings following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent's fault. Errors may not be ignored as unsubstantial when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.

The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.

HOGAN, J. (dissenting).

Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon and an order made denying an application to set aside the verdict and for a new trial to the Appellate Division. The latter court reversed the judgment on the law and granted a new trial on questions of law only, the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. (Judson v. Central Vt. R. R. Co., 158 N. Y. 597, 602.) A jury and the Appellate Division having determined that upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff and approved by the Appellate Division.

The following facts are undisputed. Leading from Broadway in the village of Tarrytown, Westchester county, is a certain public highway known as Neperham road, which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from twenty-one and one-half feet at the narrowest point a short distance easterly of the place of the collision hereinafter mentioned, to a width of twenty-seven and one-half feet at the point where the collision occurred.

On the evening of August 21st, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz., from Tarrytown easterly towards East View in an automobile which weighed about three thousand pounds, having a capacity of seventy horse power, capable of developing a speed of seventy-five miles an hour. Defendant was driving the car.

A collision occurred between the two vehicles on the highway at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident.

The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband caused as she alleged solely by the negligence of defendant in operating, driving and running the automobile at a high, unlawful, excessive and unsafe rate of speed, in failing to blow a horn or give any warning or signal of the approach of said automobile and in operating, driving and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband.

Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint and affirmatively alleged that any injury to plaintiff's intestate was caused by his contributory negligence.

As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated: ‘The case against him (defendant) must stand, therefore, if at all, upon the divergence of his course from the center of the highway.‘ The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on their right side of the highway near the grass which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about one hundred twenty feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was eighteen to twenty miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was: ‘Just before I passed the Tarrytown Heights Station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road, probably I proceeded along the road three hundred or four hundred feet further, I do not know exactly how far, when suddenly there was a crash and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call 'whoa’ and that is all I knew until I stopped my car. * * * My best judgment is I was travelling about twelve miles an hour. * * * At the time of the collision I was driving on the right of the road.‘

The manner in which and the point in the highway where the accident occurred presented a question of fact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate having observed the approaching automobile deliberately, thoughtlessly or with an intention to avoid the same left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision. The trial justice charged the jury fully as to the claims of the parties and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case) and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint. ‘It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road and the whole road ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find from the evidence here, he was driving on the wrong side of the road and that for this reason he collided with the buggy which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy and yet collided with it then you may say, if you so find, that the defendant was careless and negligent.‘ No exception was taken by the defendant to that charge, but at the close of the charge counsel for defendant made certain requests to charge upon the subject as follows:

‘(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.

‘(2) In considering the photographs and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.

‘(3) The plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.

‘(4) It was the duty of Mr. Martin to keep to the right.‘

Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant.

The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant.

The prevailing opinion in referring to the accident and the highway at the point where the accident occurred describes the same in the following language: ‘At the point of the collision, the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy emerging the defendant tells us from the gloom.‘ Such in substance was the testimony of the defendant but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding ‘a curve,‘ two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs made for the purposes of the trial were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements rather than to the photographs and failed to discover therefrom a curve of any importance or which would interfere with an unobstructed view of the road. As to the ‘buggy emerging the defendant tells us from the gloom,‘ evidence was adduced by plaintiff tending to show that the searchlights on defendant's car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible, that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown who arrived within twenty minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was twenty-seven and one-half feet. About twenty-five feet westerly on the southerly side was located an electric light which was burning. A line drawn across the highway from that light to the point of the accident would be about forty-two feet. One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room it was sufficiently light for her to see plaintiff's intestate when he was driving along the road at a point near a telegraph pole which is shown on the map some ninety or one hundred feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about forty feet distant from said point and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass forty feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner where he testified that the road was ‘fairly light.‘

The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (A) Defendant was driving his car upon the wrong side of the road. (B) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (C) The highway was well lighted. The evening was not dark. (D) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.

I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion. Therein it is stated: ‘There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous.‘ I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that if defendant did not see the buggy thus illumined it might reasonably infer that he would not have seen it anyway. Further the opinion states: ‘Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of the kind is shown.‘ As to the rate of speed of the automobile, the evidence adduced by plaintiff's witnesses was from eighteen to twenty miles an hour, as ‘very fast,‘ further that after the collision the car proceeded one hundred feet before it was stopped. The defendant testified that he was driving about twelve miles an hour, that at such rate of speed he thought the car should be stopped in five or six feet and though he put on the foot brake he ran twenty feet before he stopped. The jury had the right to find that a car traveling at the rate of twelve miles an hour which could be stopped within five or six feet, and with the foot brake on was not halted within one hundred feet must at the time of the collision have been running ‘very fast‘ or at a reckless rate of speed, and, therefore, warning would of necessity be futile. No claim was made that defendant was intoxicated or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff's right to recover. This case does not differ from many others wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was: ‘The case against him (defendant) must stand or fall, if at all, upon the divergence of his course from the center of the highway.‘ It would appear that ‘lack of vision whether excusable or not was the cause of the disaster‘ had been adopted in lieu of divergence from the center of the highway. I have, therefore, discussed divergence from the center of the road. My examination of the record leads me to the conclusion that lack of vision was not on the undisputed facts the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff's theory he might have been driving recklessly and the plaintiff and her intestate being near to the grass on the northerly side of a roadway twenty-seven feet and upwards in width the accident would not have happened and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff's side of the road and caused the accident, the question of whether or not under the facts in the exercise of reasonable care he might have discovered his error and the presence of plaintiff and thereupon avoid the collision was for the jury. The question was presented whether or not as defendant approached the wagon the roadway was so well lighted up that defendant saw or in the exercise of reasonable care could have seen the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which if placed upon the wagon of plaintiff would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.

At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge ‘that the failure to have a light on plaintiff's vehicle is prima facie evidence of contributory negligence on the part of plaintiff.‘ The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff unless such contributory negligence was the proximate and not a remote contributory cause of the injury. (Laidlaw v. Sage, 158 N. Y. 73; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, and cases cited.) The request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff's intestate's death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by ‘proximate cause‘ is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the Highway Law and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident. At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause but the proximate cause of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided had the defendant been upon his side of the road or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight and observed plaintiff and her intestate as he approached them, they being visible at the time. The defendant's request to charge which was granted, ‘that plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses that the verdict of the jury must be for the defendant,‘ presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff and her witnesses and we cannot surmise or infer that the accident would not have happened had a light been located on the wagon.

In my opinion the charge of the trial justice upon the subject of proximate cause of the accident was a full and complete statement of the law of the case, especially when considered in connection with the charge that the slightest negligence on the part of the intestate contributing to the accident would require a verdict for defendant.

It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg case. That case was decided upon the principle that where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. That proposition was clearly discussed in the Amberg case (Amberg v. Kinley, 214 N. Y. 531) as will appear by the result therein. The doctrine of causal connection therein declared was but a reiteration of the rule laid down in Willy v. Mulledy (78 N. Y, 310); Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26), and numerous other cases.

The charge requested and denied in this case was in effect that a failure to have a light upon the intestate's wagon was as matter of law such negligence on his part as to defeat the cause of action irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance and diverging from the rule of causal connection.

HISCOCK, Ch. J., POUND, MCLAUGHLIN, ANDREWS and ELKUS, JJ., concur with CARDOZO, J.; HOGAN, J., reads dissenting opinion.

Order affirmed.

Negligence — malpractice — trial — charge — action to recover for improper medical treatment — chiropractor claiming to possess skill requisite for diagnosis and treatment of disease may be held to skill and care which he claimed to possess — evidence sufficient to sustain finding of negligence — erroneous charge that practice of medicine in violation of law is in itself some evidence of negligence.

1. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, where he claimed to possess the skill requisite for diagnosis and treatment of disease, in the performance of what he undertook to do, he may be held to the degree of skill and care which he claimed to possess. Where, therefore, in an action to recover for his negligence, the plaintiff gave testimony in regard to the manner in which she was treated and supplemented it by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result, though her testimony was contradicted, the jury might well have resolved the conflict in her favor.

2. It was error, however, for the trial court to charge the jury that it might infer negligence, on the part of defendant, which produced injury to the plaintiff, from the fact that in treating the plaintiff, defendant was engaged in the practice of medicine contrary to and in violation of the Public Health Law of the State. In order to show that the plaintiff has been injured by defendant's breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury.

3. A contention that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care, cannot be sustained. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence. (Karpeles v. Heine, 227 N. Y. 74; People v. Meyer, 239 N. Y. 608, distinguished.) Brown v. Shyne, 214 App. Div. 755, reversed.

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 25, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

Leo O. Coupe and James Coupe for appellant. The trial court erred in submitting to the jury the proposition that the failure of the defendant to obtain a license to practice medicine and surgery in New York was evidence that defendant negligently performed a chiropractic adjustment on the plaintiff when there was no evidence to show that it was the proximate cause of the injury complained of. (Clark v. Doolittle, 205 App. Div. 697; Knuvfle v. Knickerbocker Ice Co., 84 N. Y. 488; Weinberger v. Kratzenstein, 71 App. Div. 155; Hyde v. McCreery, 145 App. Div. 729; Silman v. Lewis, 49 N. Y. 383; Kock v. Fox, 71 App. Div. 288; Brazil v. Isham, 12 N. Y. 9; N. Y. C. Ins. Co. v. Nat. Prot. Ins. Co., 20 Barb. 486; Newell v. Salmons, 22 Barb. 647; Clark v. Post, 113 N. Y. 17; Hall v. 17. & Reflector Co., 30 Hun, 375; Antowill v. Friedman, 197 App. Div. 230; Brmvn v. Goffe, 125 N. Y. 458.)

William R. Lee for respondent. The trial court committed no error prejudicial to defendant in his charge to the jury on the proposition of the effect of his failure to possess a license to practice medicine in New York State on the question of negligence. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Cummings v. R. R. Co., 104 N. Y. 669; Donnelly v. Rochester, 166 N. Y. 315; Meyers v. Barrett, 167 App. Div. 170; Massoih v. D. & H. C. Co., 64 N. Y. 532; McRickard v. Flint, 114 N. Y. 222; Marino v. Lehmaier, 173 N. Y. 530; Amberg v. Kinley, 214 N. Y. 535; Beisegel v. N. Y. ?. R. R. Co., 14 Abb. Pr. [N. S.] 29; Hoffman v. U. F. Co., 47 N. Y. 176; Plate v. City of Cohoes, 89 N. Y. 219; Martin v. Herzog, 228 N. Y. 164.)

LEHMAN, J. The plaintiff employed the defendant to give chiropractic treatment to her for a disease or physical condition. The defendant had no license to practice medicine, yet he held himself out as being able to diagnose and treat disease, and under the provisions of the Public Health Law (Cons. Laws, ch. 45) he was guilty of a misdemeanor. The plaintiff became paralyzed after she had received nine treatments by the defendant. She claims, and upon this appeal we must assume, that the paralysis was caused by the treatment she received. She has recovered judgment in the sum of $10,000 for the damages caused by said injury.

The plaintiff in her complaint alleges that the injuries were caused by the defendant's negligence. If negligence on the part of the defendant caused the injury, the plaintiff may recover the consequent damages. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, he claimed to possess the skill requisite for diagnosis and treatment of disease, and in the performance of what he undertook to do he may be held to the degree of skill and care which he claimed to possess. At the trial the plaintiff gave testimony in regard to the manner in which she was treated. She supplemented this testimony by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result. Though her testimony was contradicted, the jury might well have resolved the conflict in her favor, and if the only question submitted to the jury had been whether or not this evidence showed that plaintiff's injury was caused by the defendant's negligence, the defendant could not complain of any substantial error at the trial. Indeed, it would seem that in some respects the rulings of the trial judge may have been too favorable to the defendant.

At the close of the plaintiff's case the plaintiff was permitted to amend the complaint to allege " that in so treating the plaintiff the defendant was engaged in the practice of medicine contrary to and in violation of the provisions of the Public Health Law of the State of New York in such case made and provided, he at the time of so treating plaintiff not being a duly licensed physician or surgeon of the State of New York." Thereafter the trial judge charged the jury that they might bring in a verdict in favor of the plaintiff if they found that the evidence established that the treatment given to the plaintiff was not in accordance with the standards of skill and care which prevail among those treating disease. He then continued: " This is a little different from the ordinary malpractice case, and I am going to allow you, if you think proper under the evidence in the case, to predicate negligence upon another theory. The public health laws of this State prescribe that no person shall practice medicine unless he is licensed so to do by the Board of Regents of this State and registered pursuant to statute * * *. This statute to which I have referred is a general police regulation. Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff and to adjust the vertebrae in her spine when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent." In so charging the jury that from the violation of the statute the jury might infer negligence which produced injury to the plaintiff, the trial justice in my opinion erred.

The provisions of the Public Health Law prohibiting the practice of medicine without a license granted upon proof of preliminary training and after examination intended to show adequate knowledge, are of course intended for the protection of the general public against injury which unskilled and unlearned practitioners might cause. If violation of the statute by the defendant was the proximate cause of the plaintiff's injury, then the plaintiff may recover upon proof of violation; if violation of the statute has no direct bearing on the injury, proof of the violation becomes irrelevant. For injury caused by neglect of duty imposed by the penal law there is civil remedy; but of course the injury must follow from the neglect.

Proper formulation of general standards of preliminary education and proper examination of the particular applicant should serve to raise the standards of skill and care generally possessed by members of the profession in this State; but the license to practice medicine confers no additional skill upon the practitioner; nor does it confer immunity from physical injury upon a patient if the practitioner fails to exercise care. Here, injury may have been carused by lack of skill or care; it would not have been obviated if the defendant had possessed a license yet failed to exercise the skill and care required of one practicing medicine. True, if the defendant had not practiced medicine in this State, he could not have injured the plaintiff, but the protection which the statute was intended to provide was against risk of injury by the unskilled or careless practitioner, and unless the plaintiff's injury was caused by carelessness or lack of skill, the defendant's failure to obtain a license was not connected with the injury. The plaintiff's cause of action is for negligence or malpractice. The defendant undertook to treat the plaintiff for a physical condition which seemed to require remedy. Under our law such treatment may be given only by a duly qualified practitioner who has obtained a license.

The defendant in offering to treat the plaintiff held himself out as qualified to give treatment. He must meet the professional standards of skill and care prevailing among those who do offer treatment lawfully. If injury follows through failure to meet those standards, the plaintiff may recover. The provisions of the Public Health Law may result in the exclusion from practice of some who are unqualified. Even a skilled and learned practitioner who is not licensed commits an offense against the State; but against such practitioners the statute was not intended to protect, for no protection was needed, and neglect to obtain a license results in no injury to the patient and, therefore, no private wrong. The purpose of the statute is to protect the public against unfounded assumption of skill by one who undertakes to prescribe or treat for disease. In order to show that the plaintiff has been injured by defendant's breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury. No case has been cited where neglect of a statutory duty has given rise to private cause of action where it has not appeared that private injury has been caused by danger against which the statute was intended to afford protection, and which obedience to the statute would have obviated. It is said that in the case of Karpeles v. Heine (227 N. Y. 74) this court held that liability per se arises from breach of the statute which prohibits employment of a child under sixteen years of age, but in that case this court merely decided that the statute was intended to protect the child against danger arising from its own lack of foresight in the course of such employment, and that, therefore, an action against the employer by a child unlawfully employed "for injuries arising in the course of such employment and as the proximate result thereof cannot be defeated by his contributory negligence." In that case the court was considering the legal effect of the proven negligence of the child who was unlawfully employed; only upon proof in the present case of negl'-gence on the part of the chiropractor would any analogy be apparent.

It is said that the trial justice did not charge that plaintiff might recover for defendant's failure to obtain a license but only that failure to obtain a license might be considered " some evidence " of defendant's negligence. Argument is made that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care. That can be true only if logical inference may be drawn from defendant's failure to obtain or perhaps seek a license that he not only lacks the skill and learning which would enable him to diagnose and treat disease generally, but also that he lacks even the skill and learning necessary for the physical manipulation he gave to this plaintiff. Evidence of defendant's training, learning and skill and the method he used in giving the treatment was produced at the trial and upon such evidence the jury could base finding either of care or negligence, but the absence of a license does not seem to strengthen inference that might be drawn from such evidence, and a fortiori would not alone be a basis for such inference. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence.

Our decision in the case of People v. Meyer (239 N. Y. 608) is not in conflict with these views. The defendant there was charged with causing death by " culpable negligence." Negligence was shown by independent evidence, but the charge of manslaughter could be sustained only if the defendant's negligence reached beyond the bounds of lack of skill and foresight where civil liability begins to a point where criminal liability is imposed because the negligence is not merely venal but is " culpable," involving fault for which the State may demand punishment. We held that the circumstance that the defendant practiced medicine without those qualifications which the law demands as a prerequisite to practice was relevant and material upon the question whether the defendant's proven negligence was venal or culpable. We did not hold that the absence of license tended to prove negligence itself.

For these reasons the judgments should be reversed and a new trial granted, with costs to abide the event.

CRANE, J. (dissenting). The defendant is a chiropractic practitioner in Utica, N. Y. The plaintiff, a woman about forty-six years of age, in March of 1923, was his patient. Through treatment received, the plaintiff claims to have become paralyzed, and has brought this action to recover damages. A judgment in her favor has been unanimously affirmed by the Appellate Division, which, however, granted leave to the defendant to come to this court, certifying that in its opinion a question of law was involved which we should review. At the time mentioned, Miss Brown had been suffering from laryngitis, and went to the defendant's, Dr. Shyne's office for treatment. She went there nine times. It was the last treatment that was injurious.

The theory of the chiropractics is that most, if not all, diseases come from pressure on the nerves caused by vertebra deviating from the normal. The treatment consists in restoring the vertebra which is out of alignment to its proper place to relieve the pressure. This is done by palpitating the spinous processes and pushing or manipulating the vertebrae into place. The chiropractic claims to be able to treat and cure many diseases in this way. One of the defendant's chief experts in this case stated that the treatment consists entirely of adjusting the vertebrae which are found out of alignment to normal position. In this way, he stated, cancer of the stomach and liver can be cured, tuberculosis, smallpox, diphtheria, scarlet fever, diabetes and heart disease. The chiropractic does not believe in the germ theory of disease.

We readily see, therefore, that the chiropractic doctor holds himself out to treat and cure sickness and disease by the readjustment of the spinal column and the proper alignment of the vertebrae.

This was the kind of treatment that the defendant was giving the plaintiff; and the theory accords with the practice, according to the plaintiff's testimony. She says of the ninth treatment, which was the same as the others, but a little harsher:- " I lay down on the couch, face downward, and the support was removed from under my abdomen, and he began working on the spine, and from the neck, way down to the waist and back again. He pressed very hard, so that it made me flinch, especially up through the shoulders. One spot was hurt especially bad. It seemed as if it was his thumbs that he was pressing down hard, and that it hurt, it made me flinch. And then he took a hold of my head, both sides of my head, and gave it a very violent turn, twist one way and then back, which gave a very bad snap, more noticeable than any of the other treatments. And it hurt."

" Q. Where was the pain located that you experienced? A. Right from the base of the neck or head, down, midway down the back."

" Q. Had you ever experienced any pain up to that time, in your spinal column before? A. No, sir."

The plaintiff left the doctor's office, returned to her home, and immediately thereafter her arms and limbs became numb and powerless; she was confined to her bed for a period of fifteen weeks, under the care of nurses; was obliged to wear a brace, and has been partially paralyzed ever since.

The Public Health Law (sect. 161) enacts:

" No person shall practice medicine, * * * unless licensed by the regents and registered as required by this article."

The practice of medicine is defined by section 160 as follows :

" A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition."

By section 174 any person who, not being then lawfully authorized to practice medicine within this State, and so registered, according to law, shall practice medicine in violation of the article, shall be guilty of a misdemeanor.

The defendant was violating this law. He was practicing medicine in this State without a license. He was guilty of a misdemeanor. (People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Meyer, 209 App. Div. 908, affd., 239 N. Y. 608.)

The plaintiff's complaint, as amended on the trial, alleged the negligence of the defendant, and his violation of the Public Health Law. The defendant upon the trial and his witnesses testified that his treatment of vertebras alignment was according to the established practice and methods of chiropractors, and that by such treatment it was impossible to cause the plaintiff's injuries. There was some evidence to show that the defendant may have been unusually severe and harsh.

The charge of the court to the jury treated the case as one in negligence, and stated the law as applicable to duly licensed physicians, that is, that they were bound to exercise that degree of care and skill generally possessed by members of the profession in the locality where the doctor practiced. The defendant's negligence, he stated, would consist in failing to meet this standard. He further stated to the jury the above requirements of the Public Health Law, and charged: "Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff, and to adjust the vertebras in her spine, when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent."

This is the part of the charge which *is now challenged as being error, requiring a reversal of the judgment. The point is presented that the violation of the Public Health Law by the defendant, and his practicing medicine without a license, had nothing to do with this case; was not competent evidence; and should not have been considered by the jury as some evidence of negligence. With this view I do not agree.

The judge fully and completely charged the jury that the defendant was not liable for any of the plaintiff's injuries unless they were the direct and proximate cause of his acts. The evidence was abundant to prove that the plaintiff's paralysis and injuries resulted from the defendant's manipulation and treatment of her back, neck and head. The jury were justified in finding that whatever he did, whether it were proper or improper, resulted in the plaintiff's painful condition. We start, therefore, the consideration of this point with the fact that the defendant's acts were the direct and proximate cause of the injury. The next question arises as to whether or not the acts were negligent.

As I have stated, the judge charged the jury as if this were the ordinary malpractice case, furnishing for the defendant a standard of the legally authorized physician. It is difficult for me personally to follow this reasoning and the logic of the situation. I think this rule all too liberal to the defendant. What he did was prohibited by law. He could not practice medicine without violating the law. The law did not recognize him as a physician. How can the courts treat him as such? Provided his act, in violation of the law, is the direct and proximate cause of injury, in my judgment he is liable, irrespective of negligence. It seems somewhat strange that the courts, one branch of the law, can hold up for such a man the standards of the licensed physician, while the Legislature, another branch of the law, declares that he cannot practice at all as a physician. The courts thus afford the protection which the Legislature denies.

The judge in this case, however, did not go this far. He charged for the defendant's benefit the ordinary rules of negligence in malpractice cases, and then stated that the violation of the Public Health Law was some evidence of negligence, leaving the whole question to the jury. It is this much milder form of ruling which is challenged. The defendant must be treated, so the appellant claims, as if he were a duly licensed physician, and in this action for damages, resulting from his act, he is only liable if a duly licensed physician would have been liable. Such is the effect of excluding evidence of the defendant's practicing medicine without a license. If it were competent to prove that he were practicing medicine without a license, the corollary must be true, that such evidence may be considered by the jury as bearing upon the question of his negligence.

What is the rule which is to guide us in determining whether a violation of a statute or ordinance is evidence of negligence? It is no answer to say that the statute provides a penalty, and, therefore, no other consequences can follow. Such is not the law. We are to determine it, as I read the authorities, from the purpose and object of the law, and also from the fact whether a violation of the law may be the direct and proximate cause of an injury to an individual. As was said in Bourne v. Whitman (209 Mass. 155, 166): " It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. * * * A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he .suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty."

The prohibition against practicing medicine without a license was for the very purpose of protecting the public from just what happened in this case. The violation of this statute has been the direct and proximate cause of the injury. The courts will not determine in face of this statute whether a faith healer, a patent medicine man, a chiropractor, or any other class of practitioner acted according to the standards of his own school, or according to the standards of a duly licensed physician. The law, to insure against ignorance and carelessness, has laid down a rule to be followed, namely, examinations to test qualifications, and a license to practice. If a man, in violation of this statute, takes his chances in trying to cure disease, and his acts result directly in injury, he should not complain if the law, in a suit for damages, says that his violation of the statute is some evidence of his incapacity.

At this point the appellant cites those cases dealing with the failure of chauffeurs to have a license. The principal case is Clark v. Doolittle (205 App. Div. 697). There are a number of other cases upon his brief, all of which I have examined. It was the claim in these cases that the failure to have a license to run a car absolutely prevented all recovery by the driver for injuries received, although the lack of the license had nothing whatever to do with the defendant's negligence. It is self-evident that the violation of a statute must have something to do with the case; that it must in some way bear upon proximate cause. Even in the Doolittle case it was said: " The fact that the driver was at the time engaged in a violation of some law may have had an important bearing upon plaintiff's right to recover. It may be evidence against him * * * and if the fault lay in such violation may prevent recovery." All the case decided was that such violation was not an absolute bar.

But to proceed with the main discussion. The Public Health Law was intended to guard individual members of the public from the injuries which might result from resorting to unexamined practitioners. The violation of the law in this case has brought about the very thing which the Legislature has tried to prevent. In Dent v. West Virginia (129 U. S. 114, 122) the United States Supreme Court said regarding these Public Health Laws:

" Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified."

These words seem quite appropriate to our present Public Health Law. The defendant held himself out as a doctor, able to cure laryngitis. He had an office where his name appeared, as though he were a duly licensed physician. The plaintiff could not tell whether or not the doctor was licensed according to the Health Law; she was not obliged to look up the records before going to him; nor was she expected to understand all the requirements of the Regents. She was one of that public which the law sought to protect by declaring that the so-called doctor was forbidden to do the very thing he did do, and which resulted in injury. Proximate cause in connection with the violation of a city ordinance was before the court in Monroe v. Hartford Street Ry. Co. (76 Conn. 201). The court said: " It is apparent that the illegal act was not necessarily a mere independent concomitant or condition of the collision, but might well be a contributing cause, and might be, according as the jury should find the attendant or surrounding circumstances, a proximate cause of the injury. ' Cause' and ' consequence' are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result."

In recent times the difficulty with these statutes in the courts has been to determine whether the violation was negligence per se, or only some evidence of negligence. I have not been able to find any case where the violation of a statute or an ordinance was not at least some evidence of negligence, where the violation was the direct and proximate cause of the injury, that is, that the act done resulting in injury, was prohibited, and the aim and purpose of the statute or ordinance was to prevent such injuries by such prohibition. In Willy v. Mulledy (78 N. Y. 310) the charter of the city of Brooklyn imposed a duty upon the owners of tenement houses to have fire escapes thereon. It was said that where a statute imposes a duty upon a citizen, any person having a special interest in the performance thereof may sue for a breach causing him injury. In Massoth v. Delaware & Hudson Canal Co. (64 N. Y. 524) the violation of a city ordinance regulating the speed of trains through the city was taken as some evidence of negligence.

A statute of Colorado required the operators of coal mines to fence the ground around their slack coal so as to prevent loose cattle or horses from having access to such slack pile. A child strayed on an unfenced slack pile, and the owner was held liable. (Union Pacific Railway Co. v. McDonald, 152 U. S. 262.) The court said: " Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. * * * ' The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially, injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery.' The nonperformance by the railroad company of the duty imposed by statute, of putting a fence around its slack pit, was a breach of its duty to the public, and, therefore, evidence of negligence, for which it was liable in this case, if the injuries in question were, in a substantial sense, the result of such violation of duty."

The same thing holds true here. The defendant was under an obligation, a command, a duty, not to practice medicine. By failing to heed this command and duty plaintiff received injury. The statute and his breach is at least some evidence of negligence. To the same effect we have Fluker v. Ziegele Brewing Co. (201 N. Y. 40); McRickard v. Flint (114 N. Y. 222).

In his dissenting opinion in Marino v. Lehmaier (173 N. Y. 530, 540) Judge O'BRIEN mentions a number of violations of statutes and ordinances which would not be considered evidence of negligence in the particular case for the reason that the violation of such ordinance or statute did not constitute the proximate cause of the accident, that is, was in no way the cause of it. Quoting from Thompson on Negligence, he gives the rule to be applied, as follows: " And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages and often not then, the question depending upon judicial theories and surmises." The Public Health Law was designed to prevent such injuries as were suffered by the plaintiff in this case, through the illegal practice of medicine. Judge O'BRIEN cites the instances of taking fish out o? season, of smuggling, as not preventing a recovery for injury inflicted upon the violator. Within this category may be placed the instance of a person injured through negligence while violating the Sunday Law. (Platz v. City of Cohoes, 89 N. Y. 219.) Likewise, the failure to register an automobile was in no way the cause of an accident, and did not prevent recovery for another's negligence. (Hyde v. McCreery, 145 App. Div. 729.)

We now come to three cases holding that the violation of statutes created negligence per se. Amberg v. Kinley (214 N. Y. 531) related to the Labor Law (Cons. Laws, ch. 31), which required fire-escapes on factory buildings. The action was for death caused in a fire, where the factory had no such fire-escapes. This court said: "In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. * * * Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ' must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed.' "

In my judgment there can be no doubt as to the intent of the Legislature in passing the Public Health Law as herein stated by me. It was to prevent injury to people from ignorant and incompetent practitioners, unqualified men. No one can practice unless examined and licensed. That the danger was one to be guarded against; that such legislation was necessary, is apparent in this case.

Karpeles v. Heine (227 N. Y. 74) also related to the Labor Law, which provided that no child under sixteen years should operate a freight or passenger elevator. Here was a prohibition disqualifying certain persons from doing an act, in the same way that the Public Health Law disqualifies unlicensed persons from practicing medicine. This court held the case one of liability per se, following Amberg v. Kinley (supra).

Martin v. Herzog (228 N. Y. 164) related to the Highway Law (Cons. Laws, ch. 25) requiring lights on wagons after sundown. We held that the unexcused omission of the statutory signals was more than some evidence of negligence; it was negligence itself.

In view of these authorities, I am convinced that the plaintiff in this case was a part of that public for whose benefit the Public Health Law in this particular was passed. It was to prevent injury to such as she that the Legislature forbade the unlicensed practice of medicine. The plaintiff was injured through the defendant's disobedience of the law. He was treating her for laryngitis by pushing her vertebra. In pushing her vertebra and twisting her head, that is, by doing the very thing the law said he must not do, he caused paralysis. Thus by these authorities, the plaintiff could prove in connection with his acts that he was practicing medicine without a license, and such violation was, to say the least, some evidence of negligence. This is as far as the trial judge went in charging the jury. Personally, I am of the opinion that where an injury is the direct and proximate result of practicing medicine without a license, a recovery can be had, as for an act negligent per se; but we do not need to go so far in this case.

Could the defendant in this case have sued the plaintiff for his services, and recovered? Clearly he could not have maintained such an action. (Steed v. Henley, 1 Carr. & P. 574; Allison v. Haydon, 4 Bing. [C. P.] 619; Acceita v. Zupa, 54 App. Div. 33, 35.) " We cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor."

We have recently had a case in this court where these principles have been applied (People v. Meyer, 209 App. Div. 908; affd., 239 N. Y. 608). The defendant was there prosecuted for manslaughter, in causing the death of a child about five years of age, through his culpable neglect. The defendant was a chiropractor, and he sought to treat the child for diphtheria. The treatment was the same as given Miss Brown in this case — that is, by the manipulation of the spinal cord. The child died. The defendant was not a licensed physician.

If the defendant was to be measured simply by the standard of licensed physicians, or of his own school, the Public Health Law had nothing to do with the case. Negligence is negligence (the same in civil as in criminal proceedings), and culpable negligence is merely accentuated negligence. The defendant's negligence had to be proved. The prosecution did not rest with merely showing that the defendant was neglectful from the licensed physician's standpoint. The People proved his acts and omissions, and also the fact that the Public Health Law had been violated, that is, that the defendant was illegally practicing medicine. The judge made this an important part of his charge, for he read to the jury section 160 of the Public Health Law, and said: " I charge you, gentlemen, that the practice of chiropractic is practicing medicine under this law as I have read it to you." He then read section 161 of the Public Health Law, and continued as follows: " Now, gentlemen, the charge in this case is not that the defendant violated the provisions of this law. I want that clearly in your minds. It is not brought on that theory. The defendant is not brought into court and is not on trial now for practicing in violation of this statute, for which another penalty is prescribed. That is an entirely separate and distinct offence. The charge in this case is culpable negligence, under the law as I have read it to you; and in connection with that and in reaching your conclusions and coming to your decision you may consider this law that I have just read to you. * * * So, as I have charged you, if the act is in violation of a statute intended and designed to prevent injury to the person and is in itself dangerous — that is, the act itself — and is liable to result in death by reason of omission or commission, and death ensues, then the person may be guilty of culpable negligence."

We affirmed the conviction in that case. The jury were authorized to consider the violation of the statute as bearing upon the question of negligence. In this case we also have the question of negligence, and as bearing upon it the judge permitted the jury to consider together with all the other facts the practice of medicine without a license.

The ruling was correct, and the judgments below should be affirmed, with costs.

HISCOCK, Ch. J., POUND and ANDREWS, JJ., concur with LEHMAN, J.; CRANE, J., writes dissenting opinion, in which MCLAUGHLIN, J., concurs; CARDOZO, J., absent.

Judgments reversed, etc.

Sweeney, Kane and Casey, JJ., concur. Mahoney, P. J., and Weiss, J., concur in the following memorandum by Mahoney, P. J.

On August 9, 1978, defendant Mary Jane Gerstheimer, a stenographer employed by the Letchworth Village Developmental Center, drove an automobile owned by her husband, defendant George F. Gerstheimer, to a pharmacy located on the grounds of the Middletown Psychiatric Center. After parking the automobile in front of the pharmacy, she left it unattended with the keys in the ignition. Moments later, Stephen E. Rushink, a resident patient at the facility, drove away in the vehicle and met his death soon thereafter when it left the road and struck a tree. After issue was joined, plaintiff moved at Special Term for summary judgment contending that there were no triable issues of fact since defendant Mary Jane Gerstheimer violated subdivision (a) of section 1210 of the Vehicle and Traffic Law and that the violation of the statute was the proximate cause of the occurrence. Defendants opposed the motion arguing that subdivision (a) of section 1210 of the Vehicle and Traffic Law is not applicable to the instant case and, assuming it was, that the alleged violation was not the proximate cause of plaintiff's decedent's accident. Defendants also moved for summary judgment to dismiss the complaint. Special Term denied both motions and these appeals ensued. Subdivision (a) of section 1210, which prohibits a person in charge of a vehicle from leaving it unattended without removing or hiding the key, was enacted to deter theft and injury from the operation of motor 945*945 vehicles by unauthorized persons (see Banellis v Yackel, 69 AD2d 1013, affd 49 N.Y.2d 882; 8 NY Jur 2d, Automobiles, § 628, p 281). In our view, however, its provisions were plainly not designed to protect such unauthorized users from the consequences of their own actions (cf. Imerson v Benway, 12 AD2d 694). That plaintiff's decedent may not have been capable of forming a larcenous intent is irrelevant to our conclusion that he could not have been within the class of persons the enactment was meant to protect. Of course, redress for wrongs suffered by one under a legal disability may be pursued in a common-law negligence action wholly apart from statutory considerations. The instant complaint is sufficient to support such a cause of action and, since there are obvious factual issues to be resolved in determining defendants' liability, if any, the motions for summary judgment were properly denied.

Order affirmed, without costs.

Mahoney, P. J. (concurring).

While we concur in the majority's holding that the order denying both plaintiff's and defendants' motions for summary judgment must be affirmed, we cannot accept the view that subdivision (a) of section 1210 of the Vehicle and Traffic Law does not create a class of persons entitled to be protected by the statute, and, further, that plaintiff's decedent is not among its membership. In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was "designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person or property of others as well as itself being damaged. It serves to lessen the likelihood of theft" (NY Legis Doc, 1954, No. 36, pp 106-107). Since at common law the owner was not liable, as a matter of law, for the negligence of a thief, on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful operation of the car by the thief (Walter v Bond, 267 App Div 779, affd 292 N.Y. 574; Mann v Parshall, 229 App Div 366), the statute changed the common law and made it clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Where, as here, the legislative intent to protect the public generally from the consequences that foreseeably flow from unauthorized use of motor vehicles is clear, and, again as here, the violation of subdivision (a) of section 1210 is undisputed, it is patently unfair to deny to plaintiff the evidentiary weight of such violation and leave him to the more vigorous burden of establishing common-law negligence.

[1899] COUNSEL

Morris, Polich & Purdy, Robert S. Wolfe, Douglas J. Collodel and Kathleen A. Kelleher for Defendant and Appellant.

Davis & Thomas, Joseph Daniel Davis and Charlotte E. Costan for Plaintiff and Respondent.

[Opinion certified for partial publication.^[1]]

OPINION

EPSTEIN, J.

Southern Pacific Transportation Co. has appealed from a judgment against it in favor of respondent Panfilo Lua. (1) (See fn. 1.) The dispute between the parties arises out of the injuries Mr. Lua sustained when he tried to climb over appellant's train, which was stopped and blocking a public grade crossing.^[2] The case was tried to a jury, which found for the plaintiff and awarded damages in the amount of $309,400.

Southern Pacific contends that the trial court erred in instructing the jury that a violation of General Order No. 135 of the Public Utilities Commission (P.U.C.) (see 77 Cal.P.U.C. at p. 323), which regulates the length of time a stopped train may block a public grade crossing, constitutes negligence per se. The railroad also contends that the judgment should be reversed due to the misconduct of plaintiff's counsel. Finally, Southern Pacific asks us to reconsider and overrule the decision of another division of this district [1900] following an earlier appeal in this case, and on that basis direct the entry of judgment in its favor.

Because we agree with Southern Pacific's first contention and reverse on that ground, we need not reach its contentions regarding attorney misconduct. We decline to depart from established precedent regarding the law of the case and revisit the issues resolved in the earlier appeal.

FACTUAL AND PROCEDURAL SUMMARY

On September 28, 1977, the date of the incident, Panfilo Lua was an unemployed farm worker. He had traveled from Merced to Los Angeles looking for work. Having heard that a cannery was hiring, he took a bus to the vicinity of the cannery and began to walk the remaining blocks, intending to arrive before 8 p.m. It was getting dark by the time he got off the bus.

Plaintiff walked to the railroad tracks at the intersection of San Pablo Avenue and Valley Boulevard. He was unable to cross because the intersection was blocked by a stationary train. The traffic control crossing arms were up, and plaintiff saw no flashing lights and heard no bells. Plaintiff did not know how to use a watch and could not tell time, but he estimated at trial that he waited for 10 or 15 minutes before he climbed onto the train in an attempt to cross. As he put his foot on a coupler the train began to move. Plaintiff's injury resulted.

Plaintiff filed his complaint in August of 1978, and the matter was tried to a jury in July of 1983. The jury found that the defendant was negligent and the plaintiff contributorily negligent. Damages were assessed at $350,000. Ninety percent of the fault was apportioned to Southern Pacific and 10 percent to the plaintiff. An appeal (B007114) from the judgment was heard by Division One of this court. In an unpublished opinion issued in August 1985, that division reversed the judgment and remanded the matter for a new trial on all issues.^[3]

The case was retried in June of 1988. This appeal follows.

[1901] DISCUSSION

I

As pertinent here, P.U.C. General Order No. 135^[4] provides: "1.... . Except as provided in Paragraph 5, a public grade crossing which is blocked by a stopped train, other than a passenger train, must be opened within 10 minutes, unless no vehicle or pedestrian is waiting at the crossing. Such a cleared crossing must be left open until it is known that the train is ready to depart. When recoupling such a train at the crossing, movement must be made promptly, consistent with safety. [¶] 2.... . Switching over public grade crossings should be avoided whenever reasonably possible. If not reasonably possible, such crossings must be cleared frequently to allow a vehicle or pedestrian to pass and must not be occupied continuously for longer than 10 minutes unless no vehicle or pedestrian is waiting at the crossing." (Dec. No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at pp. 323-324.)

The trial court instructed the jury that "The Public Utilities Commission of the State of California has ordered that each railroad corporation operating in the State of California shall observe the following regulations in conducting operations on and across public grade crossings." The instruction went on to quote the subsections of Order No. 135 recited above. The court further instructed that "If you find that the defendant to this action violated the Public Utilities Commission Order just read to you and that such violation was a legal cause of injury to another, you will find that such violation was negligence."

(2) Evidence Code section 669 codifies the doctrine of negligence per se based on violation of a statute or regulation. (See Capolungo v. Bondi (1986) 179 Cal. App.3d 346, 349 [224 Cal. Rptr. 326].) The section provides, in pertinent part, "(a) The failure of a person to exercise due care is presumed if: [¶] (1) [A person] violated a ... regulation of a public entity; [¶] (2) The violation proximately caused ... injury ...; [¶] (3) The ... injury resulted from an occurrence of the nature which the ... regulation was designed to prevent; and [¶] (4) The person suffering the ... injury ... was one of the class of persons for whose protection the ... regulation was adopted." (Evid. Code, § 669.)

In order for a claim of negligence per se to succeed, all four elements must be shown. The first two are matters for the trier of fact; the second two are [1902] to be determined by the court as a matter of law. (Capolungo v. Bondi, supra, 179 Cal. App.3d at pp. 349-350.)

(3) We find that plaintiff's injury did not result from an occurrence the regulation was designed to prevent.

Respondent has cited several cases for the proposition that the California rule is that violation of a regulation limiting the time which a railroad may block a grade crossing is negligence per se. None is persuasive authority. One of them, Hofstadt v. Southern Pac. Co. (1931) 1 P.2d 470, was decertified for publication and is not citable as precedent. A second case, Hanlon D. & S. Co. v. Southern Pac. Co. (1928) 92 Cal. App. 230 [268 P. 385], involved an injury caused when a stopped train delayed fire trucks responding to an alarm. The final California case cited on this point, Matoza v. Southern Pacific Co. (1922) 59 Cal. App. 636 [211 P. 252], also concerned injury caused by delay, and did not involve a statute or ordinance, nor an issue of negligence per se.

Both parties argue by analogy to California cases reviewing a variety of statues and ordinances. We find none of those analogies enlightening, and turn instead, as those courts did, to the history of the regulation we are reviewing. (See Capolungo v. Bondi, supra, 179 Cal. App.3d at pp. 350-352.)

Prior to promulgating General Order No. 135, the P.U.C. heard from interested parties and solicited written comments. In findings of fact resulting from that process, the P.U.C. found that "1. The blocking of public grade crossings interferes with the freedom of access of the public using the streets and highways and can result in substantial traffic problems for the public agencies responsible for the control of traffic upon such streets and highways. [¶] 2. Public convenience and necessity require regulations which will require the clearing of crossings so as to result in the minimum delay to the public.... [¶] 4. The occupancy and blocking of public grade crossings by railroads and the clearing of such crossings by railroads necessarily involve the safety of railroad operations...." (Dec. No. 83446, Case No. 8949, supra, 77 Cal. P.U.C. at p. 322.)

These findings are addressed to the free flow of traffic and the harm which might be caused by delay. And, since section 5 of the order allows longer delays for a variety of reasons without requiring special precautions for the [1903] safety of those blocked by the train, it is apparent that the safety of passersby is not addressed by this order.^[5]

The weight of other authority is in accord with this conclusion. "Statutes which limit the time during which railway trains may obstruct crossings usually are held to be intended to prevent delays of traffic, and so may give rise to an action for damages resulting from such delay, but afford no protection against personal injuries caused by the position of the train." (Prosser & Keeton, Torts (5th ed. 1984) § 36, p. 225.)

In Fox v. Illinois Cent. R. Co. (1941) 308 Ill. App. 367 [31 N.E.2d 805, 808-809], the Illinois Appellate Court held that the purpose of a statue prohibiting trains from remaining on the tracks for longer than 10 minutes was the prevention of traffic delay, and that it was not enacted to protect drivers from damage caused by collision with a stopped railroad car. (See also Dunn v. Baltimore & Ohio R. Co. (1989) 127 Ill.2d 350 [130 Ill.Dec. 409, 537 N.E.2d 738, 746-747] [similar].)

Peigh v. Baltimore & O.R. Co. (D.C. Cir.1953) 204 F.2d 391, 394 [92 App.D.C. 198, 44 A.L.R.2d 671], is to the same effect. In that case, the court concluded that a regulation similar to the one at issue here was intended to expedite traffic and encourage commerce, and was not directed at the safety of drivers.

The cases cited by respondent to the contrary are not on point. They establish, at best, that in some jurisdictions a railroad may have a duty to signal, with lights or otherwise, before a stopped train begins to move. (See, e.g., Dodwell v. Missouri Pacific Railroad Company (Mo. 1964) 384 S.W.2d 643 [11 A.L.R.3d 1156]; Walker v. Southern Ry., Carolina Division (1907) 77 S.C. 161 [57 S.E. 764], Texas & N.O.R. Co. v. Owens (Tex. Ct. App. 1932) 54 S.W.2d 848.)

The California decisions agree that the per se effect of a statute is limited to the conduct the statute or regulation was designed to prevent. (See, e.g., Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 183 [101 Cal. Rptr. 908, 496 P.2d 1276] [ordinance prohibiting persons from extinguishing street lights not designed to prevent death by electrocution]; Atkins v. Bisigier (1971) 16 Cal. App.3d 414, 422 [94 Cal. Rptr. 49] [regulations requiring deep [1904] end of swimming pool to be marked designed to prevent drowning accidents, not diving accidents]. See also Prosser & Keeton, Torts, supra, § 36, p. 222, "... courts ... have been careful not to exceed the purpose which they attribute to the legislature.")

It follows that P.U.C. Order No. 135 is not a basis for per se liability of the railroad to a pedestrian who chooses to climb on a train that is stopped at an intersection. The trial court erred in instructing that it was. It remains for us to consider whether this error is prejudicial.

II

(4) "Generally speaking, if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. [Citation.] To put it another way [w]here it seems probable that the jury's verdict may have been based on the erroneous instruction, prejudice appears and this court should not speculate upon the basis of the verdict. [Citations.]" (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [117 Cal. Rptr. 1, 527 P.2d 353], internal quotation marks omitted; Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 767 [206 Cal. Rptr. 354, 686 P.2d 1158].)

Other theories of liability were presented at the trial, but it is apparent from a review of the record that this instruction probably misled the jury. A negligence per se instruction is strong medicine, designed to have an impact on the jury. Respondent relied heavily on the instruction in argument, a factor we consider in measuring the prejudicial effect of a jury instruction. (See Seaman's Direct Buying Service, Inc. v. Standard Oil Co., supra, 36 Cal.3d at p. 771.) Counsel used a blowup of the instruction, referred to it as a "key instruction," and told the jurors that if they found that the defendant had blocked the intersection for more than 10 minutes "Mr. Lua is entitled to your verdict."

Since the jury returned a general verdict, we cannot determine the exact basis of its decision, but it is unlikely that the jury ignored the instruction and more than probable that the verdict was based on the erroneous instruction. For that reason, the judgment must be reversed.

(5) Respondent argues that by failing to object to the instruction Southern Pacific waived its right to assert instructional error on appeal. This argument also fails. Instructions are deemed excepted to, and the claim of error was thus preserved. (Code Civ. Proc., § 647, Enis v. Specialty Auto [1905] Sales (1978) 83 Cal. App.3d 928, 940 [148 Cal. Rptr. 255].) Gamboa v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 20 Cal. App.3d 61 [97 Cal. Rptr. 471], cited by respondent for a rule to the contrary, is based on federal practice, and has no application here.^[6]

III-IV^[7]

.... .... .... .... .... .... .... .

CONCLUSION

The accident that gave rise to this litigation occurred in September 1977, and the lawsuit commenced in August of the following year. Now, almost 15 years after the accident, we must reverse the case for a third trial. Given the gravity of the error, we have no other course. Hopefully, this case will soon proceed to a final resolution.

DISPOSITION

The judgment is reversed and remanded for a new trial on all issues. Each party to bear its own costs on appeal.

Woods (A.M.), P.J., and Stephens, J.,^[8] concurred.

[1] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III and IV.

[2] A "grade crossing" is "[a] place where a railroad is crossed at grade by a public or private road." (See Black's Law Dict. (5th ed. 1979) p. 628, col. 1.)

[3] We take judicial notice of that decision, and base this portion of the statement of facts on matters contained therein. (See Evid. Code, § 452.)

[4] We have notified the parties of an intention to take judicial notice of all matters contained in Decision No. 83446, Case No. 8949 (1974) 77 Cal. P.U.C. 320. Having done so, and having invited and received their comments, we now take judicial notice of this decision. (See Evid. Code, § 455, subd. (a).)

[5] Appellant additionally argues that the instruction was erroneous because it did not include the provisions of section 5, noted above, and therefore did not ask the jury to find as a basic fact that the delay was not one which was permitted. Respondent argues that it was the appellant's burden to produce evidence on this point, as a rebuttal to the Evidence Code section 669 presumption. We need not and do not decide that issue, since we conclude that the regulation does not inure to the benefit of individuals in respondent's position.

[6] Respondent also cited Wilkinson v. Bay Shore Lumber Co. (1986) 182 Cal. App.3d 594, 599 [227 Cal. Rptr. 327, 61 A.L.R.4th 111], for the proposition that failure to object to an instruction relieves an appellate court of the obligation to review any claimed error. Wilkinson cites Gamboa for this proposition, but fails to note that Gamboa was applying federal rules. Further, the statement was dictum since the court assumed for purposes of its discussion that an objection had been raised.

[7] See footnote, ante, page 1897.

[8] Retired Associate Justice of the Court of Appeal, Second District, sitting under assignment by the Chairperson of the Judicial Council.

159 Eng. Rep. 299

BYRNE

v.

BOADLE.

Nov. 25, 1863

The plaintiff was walking in a public street past the defendant's shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him. Held sufficient prima facie evidence of negligence for the jury, to cast on the defendant the onus of proving that the accident was not caused by his negligence.

[S.C. 33 L.J. Ex. 13; 12 W.R. 279; 9 L.T. 450. Followed, Briggs v. Oliver, 1866, 4 H. & C. 407. Adopted, Smith v. Great Eastern Railway, 1866, L. R. 2 C.P. 11.]

Declaration. For that the defendant, by his servants, so negligently and unskillfully managed and lowered certain barrels of flour by means of a certain jigger-hoist and machinery attached to the shop of the defendant, situated in a certain highway, along which the plaintiff was then passing, that by and through t he negligence of the defendant, by his said servants, one of the said barrels of flour fell upon and struck against t he plaintiff, whereby the plaintiff was thrown down, wounded, lamed, and permanently injured, and was prevented from attending to his business for a long time, to wit, thence hitherto, and incurred great expense for medical attendance, and suffered great pain and anguish, and was otherwise damnified.

Plea. Not guilty.

At the trial before the learned Assessor of the Court of Passage at Liverpool, the evidence 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 [2 Hurlst. & Colt. 723] 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.

It was submitted, on the part of the defendant, that there was no evidence of negligence for the jury. The learned Assessor was of that opinion, and nonsuited t he plaintiff, reserving leave to him to move the Court of Exchequer to enter the verdict for him with 501. damages, the amount assessed by the jury.

Littler, in the present term, obtained a rule nisi to enter the verdict for the plaintiff, on the ground of misdirection of the learned Assessor in ruling that there was no evidence of negligence on the part of the defendant; against which

Charles Russell nowshewed cause. First, there was noevidence to connect the defendant or his servants with the occurrence. It is not suggested that the defendant himself was present, and it will be argued that upon these pleadings it is not open to the defendant to contend that his servants were not engaged in lowering the barrel of flour. But the [2 Hurlst. & Colt. 724]declaration alleges that the defendant, by his servants, so negligently lowered the barrel of flour, that by and through the negligence of the defendant, by his said servants, it fell upon the plain tiff. That is tantamount to an allegation that the injury was caused by t he defendant's negligence, and it is competent to him, under t he plea of not guilty, to contend that his servants were not concerned in the act alleged. The plaintiff could not properly plead to this declaration that his servants were not guilty of negligence, or that the servants were not his servants. If it [159 Eng. Rep. 300] had been stated by way of inducement that at the time of the grievance the defendant’s servants were engaged in lowering the barrel of flour, that would have been a traversable allegation, not in issue under the plea of not guilty. Mitchell v. Crassweller (13 C. B. 237) and Hart v. Crowley (12 A. & E. 378) are authorities in favour of the defendant. Then, assuming the point is open upon these pleadings, there was no evidence that the defendant, or any person for whose acts he would be responsible, was engaged in lowering the barrel of flour. It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant, or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant. [Pollock, C. B. The presumption is that the defendant's servants were engaged in removing the defendant's flour; if they were not it was competent to the defendant to prove it. J Surmise ought not to be substituted for strict proof when it is sought to fix a defendant with serious liability. The plaintiff should establish his case by affirmative evidence.

Secondly, assuming the facts to be brought home to the defendant or his servants, these facts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give affirmative proof of negligence. But there [2 Hurlst. & Colt. 725]was not a scintilla of evidence, unless the occurrence is of itself evidence of negligence. There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration. [Pollock, C. B. There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions.] On examination of the authorities, that doctrine would seem to be confined to the case of a collision between two trains upon the same line, and both being the property and under the management of the same Company. Such was the case of Skinner v. The London, Brighton and South Coast Railway Company (5 Exch. 787), where the train in which the plaintiff was ran into another train which had stopped a short distance from a station, in consequence of a luggage train before it having broken down. In that case there must have been negligence, or the accident could not have happened. Other cases cited in the text-books, in support of the doctrine of presumptive negligence, when examined, will be found not to do so. Amongst them is Carpue v. The London and Brighton Railway Company (5 Q.B. 747), but there, in addition to proof of the occurrence, the plaintiff gave affirmative evidence of negligence, by shewing that the rails were somewhat deranged at the spot where the accident took place, and that the train was proceeding at a speed which, considering the state of the rails, was hazardous. Another case is Christie v. Griggs (2 Campb. 79), where a stage-coach on which the plaintiff was travelling broke down in consequence of the axle-tree having snapped asunder. But that was an action on the contract to carry safely, and one of the counts imputed the accident to the insufficiency of the [2 Hurlst. & Colt. 726]coach, of which its breaking down would be evidence for the jury. [Pollock, C. B. What difference would it have made, if instead of a passenger a bystander had been injured?) In the one case the coach proprietor was bound by his contract to provide a safe vehicle, in the other he would only be liable in case of negligence. The fact of the accident might be evidence of negligence in the one case, though not in the other. It would seem, from the case of Bird v. The Great Northern Railway Company (28 L.J. Exch. 3), that the fact of a train running off the line is not prima facie proof where the occurrence is consistent with the absence of negligence on the part of the defendants. Later cases have qualified the doctrine of presumptive negligence. In Cotton v. Wood (11 C.B. N.S. 568) it was held that a Judge is not justified in leaving the case to the jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant. In Hammack v. White (11 C.B. N.S. 588, 594), Erie, J., said that he was of opinion “that the plaintiff in a case of this sort was not entitled to have the case left to the jury unless he gives some affirmative evidence that there has been negligence on the part of the defendant.” [Pollock, C.B. If he meant that to apply to all cases, I must say, with great respect, that I entirely differ from him. He must refer to the mere nature of the accident in that particular case. Bramwell, B. No doubt, the presumption of negligence is not raised in every case of injury from accident, but in some it is. We must judge of the facts in a reasonable way; and regarding them in that light we know that these accidents do not take place without a cause, and in general that cause is negligence.] The law will not presume that a man is guilty of a wrong. It is consistent with the [159 Eng. Rep. 301] facts proved that the defendant's servants were using [2 Hurlst. & Colt. 727] the utmost care and the best appliances to lower the barrel with safety. Then why should the fact that accidents of this nature are sometimes caused by negligence raise any presumption against the defendant? There are many accidents from which no presumption of negligence can arise. [Bramwell, B. Looking at the matter in a reasonable way it comes to this—an injury is done to the plaintiff, who has no means of knowing whether it was the result of negligence; the defendant, who knows how it was caused, does not think fit to tell the jury.] Unless a plaintiff gives some evidence which ought to be submitted to the jury, the defendant is not bound to offer any defence. The plaintiff cannot, by a defective proof of his case, compel the defendant to give evidence in explanation. [Pollock, C.B. I have frequently observed that a defendant has a right to remain silent unless a prima facie ease is established against him. But here the question is whether the plaintiff has not shewn such a case.] In a case of this nature, in which the sympathies of a jury are with the plaintiff, it would be dangerous to allow presumption to be substituted for affirmative proof of negligence. Littler appeared to support the rule, but was not called upon to argue.

POLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong tolay down asa rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel bad rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred?It is [2 Hurlst. & Colt. 728] 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 prima 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. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage 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 prima 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 prima 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.

BRAMWELL, B. I am of the same opinion.

CHANNELL, B. I am of the same opinion. The first part of the rules assumes the existence of negligence, but takes this shape, that there was no evidence to connect the defendant with the negligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied, and [2 Hurlst. & Colt. 729] therefore prima facie he is responsible. Then the question is whether there was any evidence of negligence, not a mere scintilla, but such as in the absence of any evidence in answer would entitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a warehouse by the side of a public highway, and assumes to himself the right to lower from it a barrel of flour into a cart, has a duty cast upon him to take care that persons passing along the highway are not injured by it. I agree that it is not every accident which will warrant the inference of negligence. On the other hand, I dissent from the doctrine that there is no accident which will in itself raise a presumption of negligence. In this case I think that there was evidence for the jury, and that the rule ought to be absolute to enter the verdict for the plaintiff.

PIGOTT, B. I am of the same opinion.

Rule absolute.

83 Cal.App.2d 210 (1948)

BEULAH LARSON, Appellant,
v.
ST. FRANCIS HOTEL et al., Respondents.

Civ. No. 13573.

California Court of Appeals. First Dist., Div. One.

Jan. 12, 1948.

Harry G. Henderson for Appellant.

Hoge, Pelton & Gunther and Leo V. Killion for Respondents.

BRAY, J.

The accident out of which this action arose was apparently the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V-J Day, August 14, 1945. Plaintiff (who is not included in the above description), while walking on the sidewalk on Post Street adjoining the St. Francis Hotel, just after stepping out from under the marquee, was struck on the head by a heavy, overstuffed armchair, knocked unconscious, and received injuries for which she is asking damages from the owners of the hotel. Although there were a number of persons in the immediate vicinity, no one appears to have seen from whence the chair came nor to have seen it before it was within a few feet of plaintiff's head, nor was there any identification of the chair as belonging to the hotel. However, it is a reasonable inference that the chair came from some portion of the hotel. For the purposes of this opinion, we will so assume, in view of the rule on nonsuit cases that every favorable [212] inference fairly deducible from the evidence must be drawn in favor of plaintiff, and that all the evidence must be construed most strongly against the defendants. (9 Cal.Jur. p. 551.)

At the trial, plaintiff, after proving the foregoing facts and the extent of her injuries, rested, relying upon the doctrine of res ipsa loquitur. On motion of defendant the court granted a nonsuit. The main question to be determined is whether under the circumstances shown, the doctrine applies. The trial court correctly held that it did not.

In Gerhart v. Southern Cal. Gas Co., 56 Cal.App.2d 425 [132 P.2d 874], cited by plaintiff, the court sets forth the test for the applicability of the doctrine. "... for a plaintiff to make out a case entitling him to the benefit of the doctrine, he must prove (1) that there was an accident; (2) that the thing or instrumentality which caused the accident was at the time and prior thereto under the exclusive control and management of the defendant; (3) that the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened. ... The doctrine of res ipsa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application ... to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible, and when it appears that the injury was caused by one of two causes for one of which defendant is responsible but not for the other, plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other." (Emphasis added.)

Applying the rule to the facts of this case, it is obvious that the doctrine does not apply. While, as pointed out by plaintiff, the rule of exclusive control "is not limited to the actual physical control but applies to the right of control of the instrumentality which causes the injury" it is not clear to us how this helps plaintiff's case. A hotel does not have exclusive control, either actual or potential, of its furniture. Guests have, at least, partial control. Moreover, it cannot be said that with the hotel using ordinary care "the accident was such that in the ordinary course of events ... would not have happened." On the contrary, the mishap would quite as likely be due to the fault of a guest or other person [213] as to that of defendants. The most logical inference from the circumstances shown is that the chair was thrown by some such person from a window. It thus appears that this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be placed in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.

The cases cited by plaintiff as authority for the application of the doctrine of res ipsa loquitur are easily distinguishable from this case. In Gerhart v. Southern Cal. Gas Co., supra, which involved an explosion from leaking gas, the court found (p. 427) that defendant was in the exclusive ownership, control and management of the supply, flow and existence of the gas which exploded. In Helms v. Pacific Gas & Electric Co., 21 Cal.App.2d 711 [70 P.2d 247], a glass portion of an electrolier fell and injured the plaintiff, who was standing on the sidewalk beneath it. The parties stipulated that the electrolier was owned and maintained by the defendant. There, not only was the instrumentality which caused the accident in the exclusive control and management of the defendant, but the falling of the glass portion was something that in the ordinary course of events would not occur if the defendant used ordinary care in maintaining it.

In Michener v. Hutton, 203 Cal. 604 [265 P. 238, 59 A.L.R. 480], the length of pipe which fell and caused the injury was "unquestionably under the management of the appellants at the time of the accident." (P. 609.) While the court holds that (p. 608) "The doctrine has also found frequent application in actions for damages for injuries incurred by reason of being struck by falling objects," it is limited to situations in which the thing is shown to be under the exclusive management or control of the defendant or his servants, or in which it must necessarily follow that the injury would not have occurred had the defendant used ordinary care.

In Mintzer v. Wilson, 21 Cal.App.2d 85 [68 P.2d 370], a paid guest in defendant's hotel was injured while in bed by the falling of a huge piece of plaster from the ceiling. It was held by the court that the ceiling was in the exclusive [214] control of the hotel, and that plaster does not ordinarily fall from properly constructed ceilings.

Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664 [80 P.2d 185, 1016], holds (p. 688): "The mere fact that an accident has occurred does not of itself result in any inference of negligence as against a defendant. ... To justify the invocation of the rule res ipsa loquitur the instrumentality which caused the injury must have been under the exclusive management of the defendant" and quotes from Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364 [40 P.2d 873], as follows: "Neither does it apply where the cause of the accident is unexplained and might have been due to one of several causes for some of which the defendant is not responsible." See, also, Hilson v. Pacific G. & E. Co., 131 Cal.App. 427, 434 [21 P.2d 662], which held that in a situation as last above quoted, the doctrine "can in no event apply."

Plaintiff quotes 9 California Jurisprudence, page 548 to the effect "that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made" and contends that the motion for nonsuit in the trial court did not do this. The motion was made on the ground that "there is no evidence from which it might be inferred that the hotel was guilty of any negligence which caused the chair" to hit plaintiff. It further points out that the only evidence attempting to connect the hotel with the accident is the fact that it occurred in the proximity of the hotel, and that such proof is not sufficient to establish liability. The motion was sufficient.

In her complaint plaintiff alleged in paragraph III that the defendant was engaged in the hotel business on all the premises described therein and had the right of control and management thereof. In its answer defendants denied all of the allegations of paragraph III and then stated: "Further answering paragraph III, these defendants admit that they operated the St. Francis Hotel at said time as copartners." Plaintiff contends that in some way this is an admission that defendants had exclusive control and management of the furniture of the hotel so as to warrant the application of the doctrine of res ipsa loquitur. It is obvious that such contention is without merit.

The judgment appealed from is affirmed.

Peters, P. J., and Ward, J., concurred.

[95 N.W.2d 659] Syllabus by the Court

1. Where a hotelkeeper knows or has reason to know of the danger of injury to passers-by from the acts of its transient guests within the hotel, it is under the duty to take reasonable steps to avoid such injury.

2. One who assembles a large number of people upon his premises for the purpose of financial gain to himself assumes responsibility for using all reasonable care to protect others from injuyr from causes reasonably to be anticipated. In the exercise of this duty it is necessary for him to furnish a sufficient number of guards or attendants and to take precautions to control the actions of the crowd. Whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine.

3. The common-law test of duty is the probability of injury to [254 Minn. 374] others. The risk of injury to others reasonably to be perceived within the range of apprehension defines the duty to be obeyed.

4. For the risk of injury be within a defendant's range of apprehension it is not necessary that the defendant should have notice of the particular method in which an accident might occur, if the possibility of an accident is clear to a person of ordinary prudence.

5. While the standard of care remains the same, the degree of care owed by the defendant varies with the facts and circumstances surrounding each particular case.

6. It is the policy of the law, both statutory and decisional, to protect the public from social consequences of intoxicating liquor, and a hotel operator engaged in that business who permits [95 N.W.2d 660] crowds to gather upon his premises for profit must recognize the risks which flow from the nature of the business.

7. Where the operator of a hotel permitted its facilities to be used in the conduct of a convention attended by more than 4,000 young men, 350 to 400 of whom were registered guests, during which convention intoxicating liquor was sold and dispensed free of charge at 'hospitality centers' throughout the building; where after several days the hotel management had notice of a course of disorderly conduct followed by its guests as evidenced by damage to the hotel property, objects being thrown from the upper floors of the building, and where hallways and adjacent premises were daily littered with the debris of broken glasses and bottles, a question was presented to the jury as to whether or not the defendant had notice or should have foreseen that in the course of such conduct objects might be thrown from hotel windows to the sidewalk below as a result of which members of the public would be exposed to bodily harm.

8. Where a hotelkeeper whose premises were used as headquarters for a convention attended by more than 4,000 young men, after notice of the disorderly nature of the convention, failed to make any request [254 Minn. 375] to convention authorities to control the conduct of those attending the convention, and where he failed to request additional police protection or to hire additional guards after it became apparent that the convention was 'out of control,' a question was presented to the jury under facts recited in opinion as to whether or not the defendants in the exercise of reasonable care used such precautions as the circumstances required to protect members of the public using adjacent streets from harm resulting from objects being thrown from the hotel premises to the sidewalk below.

9. A pedestrian using a sidewalk adjacent to a hotel where intoxicating liquor is sold and dispensed has the right to assume that the owner will exercise reasonable care to the end that the acts and conduct permitted upon the property will not expose a member of the public to the risk of bodily harm.

10. Whether the proprietors of a hotel, having notice of the disorderly behavior of their guests and invitees, took such steps as a person of ordinary prudence would take to protect others from foreseeable hazards resulting from disorderly conduct was a question of fact for the jury.

11. The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eyewitnesses, and circumstantial evidence alone may authorize a finding of negligence. Negligence may be inferred from all of the facts and surrounding circumstances and, where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made.

[254 Minn. 376] G. M. Sullivan and Charles R. Murnane, Murnane & Murnane, St. Paul, for appellant.

Meagher, Geer, Markham & Anderson, O. C. Adamson, II, and Wm. T. Egan, Minneapolis, for respondents.

MURPHY, Justice.

Action by Marcella A. Connolly against The Nicollet Hotel, a copartnership, and Alice Shmikler, as trustee of Joseph Shmikler, and others, doing business as The Nicollet Hotel, for the loss of the sight of her left eye alleged to have been caused by defendants' negligence.

The accident occurred about midnight June 12, 1953, during the course of the 1953 National Junior Chamber of Commerce Convention which had its headquarters [95 N.W.2d 661] at The Nicollet Hotel in Minneapolis. It was occasioned when plaintiff was struck in her left eye by a substance falling from above her as she walked on a public sidewalk on Nicollet Avenue adjacent to the hotel.

The 1953 National Junior Chamber of Commerce Convention, Inc., was joined as a defendant in the action, but at the close of the testimony a verdict was directed in its favor. The jury returned a verdict against The Nicollet Hotel copartnership, which will hereinafter be designated defendants, in the sum of $30,000. This is an appeal from an order of the trial court granting judgment for such defendants notwithstanding the verdict. On appeal plaintiff contends that defendants were negligent in failing to maintain order and control the conduct of their guests with respect to persons using the sidewalk adjacent to the hotel building and that hence the court erred in granting judgment notwithstanding the verdict.

The evidence, presented entirely by plaintiff inasmuch as defendants rested at the conclusion of plaintiff's case, established the following: The easterly side of The Nicollet Hotel is adjacent to Nicollet Avenue. The hotel lies between Washington Avenue to the north and Third Street to the south. It is a 12-story building, but on the Nicollet Avenue side it [254 Minn. 377] is limited to eight stories in height. It has a capacity of approximately 490 sleeping rooms on the upper eleven floors. There are no other high buildings in its vicinity. Just south of the hotel on Nicollet Avenue is The Nicollet Hotel garage also operated by defendants. On the east side of Nicollet Avenue opposite the hotel were two 4-story buildings. To the south of these is a parking lot.

Nicollet Avenue in his block is about 50 feet in width. The sidewalks adjacent to it on each side are about 10 feet in width from curb line to building line. At the time of the accident that half of the west sidewalk nearest to the hotel was blocked off by a barricade from the Nicollet Avenue hotel entrance south for about 95 feet, leaving an area about 5 feet in width for pedestrian traffic for such distance. The hotel entrance on Nicollet Avenue is about midway between Washington Avenue and the entrance to the hotel garage.

The time of the accident there was nothing unusual about the weather. Plaintiff, in company with one Margaret Hansen, had just left the hotel via its Nicollet Avenue entrance and was walking southerly toward Third Street on the west side of Nicollet Avenue. When she had traveled approximately six to ten steps from the canopy extending over such entrance, she observed two people walking toward her. She then heard a noise which sounded like a small explosion and saw something strike the walk in front of her. She observed that one of the persons approaching her was struck on the left shoulder by some substance. She then exclaimed, 'We better get off this sidewalk, * * * or somebody is going to get hit.' Immediately thereafter she glanced upward and was struck in the left eye by a substance she described as a mud-like substance or a 'handful of dirt.' Margaret Hansen testified that she also saw the substance falling from eye level to the sidewalk a step or two in front of her. She described the sound made by the striking object as explosive and accompanied by a splattering. The only place from which the article might have fallen from above was the hotel building.

The blow which struck plaintiff caused her to lose her balance but not to fall. Her knees buckled and she was caught by Margaret Hansen and held on her feet. Following the blow, she stated that she could not open her left eye and the left side of her face and head became numb, [254 Minn. 378] and her shoulders, hair, and the left side of her face were covered with dirt. A dark substance which looked like mud was found imbedded in her left eye. After the acciden the assistant manager of the hotel attempted to remove a 'mud like substance' [95 N.W.2d 662] from plaintiff's eye by using a cotton applicator. As a result of the foregoing accident, plaintiff lost the sight of the injured eye.

As stated above, the 1953 National Junior Chamber of Commerce Convention occupied a substantial portion of the hotel at the time of the accident. In connection therewith various delegates and firms maintained hospitality centers there where intoxicants, beer, and milk were served to guests and visitors. Two of such centers were located on the Nicollet Avenue side of the building.

The assistant manager of the hotel on duty at the time of the accident and in charge of maintaining order had received notice that water bags had been thrown from the hotel during the previous days of the convention. The night engineer testified that on the Hennepin Avenue side of the hotel he had observed liquor and beer bottles and cans on the sidewalk and described the accumulation in this area as greater than he had ever witnessed during the 18-month period he had been employed at the hotel. He also testified that he had found cans and beer bottles upon the fire escape at the third-floor level during the convention.

Arthur Reinhold, an employee of the garage, had been informed that objects had fallen or been thrown from the hotel and that a window screen had fallen from the building, first striking the barricade covering the sidewalk next to the garage, and then falling upon a pedestrian. He also was advised that ice cubes had been thrown from the hotel and that a bottle had been thrown or had fallen therefrom during the course of the convention.

Since in reviewing an order upon a motion granting judgment notwithstanding the verdict we are required to view the evidence in the light most favorable to the verdict, it is material to point out these additional facts: A floral shop was maintained on the premises where potted plants were sold. During the course of the convention a mule was stabled in the lobby of the hotel, and a small alligator was kept on the fourth floor. There was firing of guns in the lobby. Broken bottles and broken glass [254 Minn. 379] were found on the sidewalk near the garage adjacent to the building so that it was necessary to clean the sidewalk near the garage as frequently as twice a day during the course of the convention. The doorman at the hotel was equipped with a shovel and broom which he used for this sidewalk maintenance. Property of the hotel was damaged on the third, fourth, fifth, sixth, eighth, ninth, tenth, and eleventh floors. The window of the office of the credit manager was broken. From the testimony of the executive housekeeper of the hotel the damage consisted of wet carpets, broken chairs, broken screens, molding torn loose from connecting doors, and walls spotted with liquor and water. The inspection of the building made after the accident indicated that there were three missing window screens, mirrors pulled off the walls in bathrooms, light fixtures were broken, signs were broken, hall lights were broken, exit lights were broken, the bowl in the men's washroom was torn off the wall, holes were drilled through door panels, and 150 face towels had to be removed from service. Borken glass and bottles were found on landings and stair wells, a condition which existed almost every night at all floor levels. It became apparent to the general manager of the hotel on June 11, 1953, the day prior to the happening of the accident to the plaintiff, that the disorderly behavior of the hotel guests created a hazard to the defendant's property. He issued the following memorandum to his staff:

'WE HAVE ALMOST ARRIVED AT THE END OF THE MOST HARROWING EXPERIENCE WE HAVE HAD IN THE WAY OF CONVENTIONS, AT LEAST IN MY EXPERIENCE! WHEN WE BECAME INVOLVED AND SAW WHAT THE SITUATION WAS, [95 N.W.2d 663] WE HAD NO ALTERNATIVE BUT TO PROCEED AND 'TURN THE OTHER CHEEK.' HOWEVER, IT INVOLVES CERTAIN EXPENSES THAT I DO NOT PROPOSE TO FOREGO WITHOUT AT LEAST AN ARGUMENT--AND MAYBE LEGAL SUIT.

'I, OF COURSE, AM SPEAKING OF ANY DAMAGE, WHICH FOR THE MOST PART WILL BE REPORTED BY THE HOUSEKEEPING DEPARTMENT. HOWEVER, THAT I MAY DRAW UP A COMPREHENSIVE CASE, PLEASE HAVE THE INFORMATION IN MY OFFICE NOT LATER THAN NOON, FRIDAY. WE WILL, [254 Minn. 380] INCIDENTALLY, START TO TAKE DOWN ALL SIGNS, ETC., AT 9:00 AM, FRIDAY MORNING.'

In granting the defendants' motion for judgment notwithstanding the verdict, the trial court was of the view that there was no evidence which would support a finding that the defendants had knowledge of the particular risk of injury to a member of the public and that by the exercise of ordinary care they could not know that a guest's conduct would naturally result in injury to others. The trial court apparently agreed with the defendants' contention that prior to the plaintiff's injury there was no time to ascertain the location of the room from which the object fell or from which it was thrown and to evict therefrom the person or persons responsible therefor. Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S.W. 373, 19 Ann.Cas. 217.

It is generally agreed that a hotel owner or innkeeper owes a duty to the public to protect it against foreseeable risk of danger attendant upon the maintenance and operation of his property (Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081; Kapphahn v. Martin Hotel Co., 230 Iowa 739, 298 N.W. 901); and to keep it in such condition that it will not be of danger to pedestrians using streets adjacent thereto. Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114.

The failure of a hotel owner and operator to take reasonable precautions to eliminate or prevent conditions of which he is or should be aware and which might reasonably be expected to be dangerous to the public may constitute negligence. Wolk v. Pettsburgh Hotels Co., supra. In Holly v. Meyers Hotel & Tavern, Inc., 9 N.J. 493, 495, 89 A.2d 6, 7, the Supreme Court of New Jersey has stated the rule this way:

'We accept the general doctrine that if the defendant hotel knew, or had reason to know, of the danger of injury to passers-by from the acts of its transient guests within the hotel, then it was under the duty to take reasonable steps to avoid such injury. See Wolk v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081 (Sup.Ct.1925); Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114 (Ct.App.1935); Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S.W. 373, 376 (Ct.App.1909); 43 C.J.S., p. 1176 (1945); 28 Am.Jur., p. 636 [254 Minn. 381] (1940).'

The plaintiff contends that the act which caused the injury was foreseeable and that the defendants failed in their duty to exercise reasonable care to restrain their guests or to prevent the injury.

There are certain controlling principles of law which must be kept in mind in considering the merits of the plaintiff's claims as they are established by the record. It is recognized that one who assembles a large number of people upon his premises for the purpose of financial gain to himself assumes the responsibility for using all reasonable care to protect others from injury from causes [95 N.W.2d 664] reasonably to be anticipated.^[1] In the exercise of this duty it is necessary for him to furnish a sufficient number of guards or attendants and to take other precautions to control the actions of the crowd.^[2] Whether the guards furnished or the precautions taken are sufficient is ordinarily a question for the jury to determine under all of the circumstances.

The common-law test of duty is the probability or foreseeability of injury to the plaintiff. As expressed by Chief Judge Cardozo, 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.' Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100, 59 A.L.R. 1253, 1256; 13 Dunnell, Dig. (3 ed.) § 6973, note 25. In Restatement, Torts, § 348, the same rule is expressed with respect to liability of one who holds out his property for use of the public. It is said that in the exercise of reasonable care the owner of a public place has a 'duty to police the premises' and to furnish a sufficient number of servants to afford reasonable protection 'if the place is one or the character of the business is such that the utility or other possessor should expect careless or criminal third persons to be thereon either generally or at some particular time.' Schubart v. Hotel Astor, Inc., 168 Misc. 431, 438, 5 N.Y.S.2d 203, 210.

For the risk of injury to be within the defendants' 'range of apprehension,' it is not necessary that the defendants should have had [254 Minn. 382] notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the person of ordinary prudence.^[3]

It should further be emphasized that, while the standard of care remains constant, the degree of care varies with the facts and circumstances surrounding each particular case. And, in considering the degree of care to be exercised by the defendants under the circumstances in the case before us, it is relevant to consider authorities dealing with the liability of hotelkeepers and bar operators.^[4]

Since the defendants are not only hotel operators but are engaged as well in the sale of intoxicating liquor, it is material to point out that they are under the duty to use reasonable care to protect guests and patrons from injury at the hands of irresponsible persons whom they knowingly permit to be in and about the premises on which their business is conducted. In Mastad v. Swedish Brethren, 83 Minn. 40, 42, 85 N.W. 913, 914, 53 L.R.A. 803, 805, 85 Am.St.Rep. 446, 448, we said:

'* * * All who engage in a public business of that nature are bound to protect their guests, both in person and property, from acts and misconduct of wrongdoers permitted to remain upon the premises; and the rules of law applicable to the common carrier are applicable alike to them.'

See, also, Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142; Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116. Although it appears from the record that the defendants doubted the wisdom of permitting free liquor and beer to be served upon the premises, they nevertheless permitted it.

[95 N.W.2d 665] It is policy of the law, both statutory and decisional, to protect the public from social consequences of intoxicating liquor. There is perhaps no field of business activity more hedged about with state and municipal laws and regulations designed to protect the public. When a [254 Minn. 383] person engaged in that business permits crowds to gather upon his premises for profit, he must recognize the risks which flow from the nature of the business.

In the light of the foregoing observations we may examine the record for the purpose of determining whether or not the act causing the injury was within the range of foreseeability and, if so, whether the defendants exercised the required degree of care to protect the public from the consequences of such an act. Since the act causing the injury must be considered in the light of the circumstances and conditions under which it is alleged to have occurred, it should be observed that the defendants not only furnished room accommodations for from 350 to 400 delegates but also provided their rooms and facilities as headquarters for a convention attended by more than 4,000 young men. This use differed from the ordinary commercial business of the hotel in that its rooms and facilities were turned over to the convention for meetings, caucuses, and social purposes. An officer of the convention described the delegates as a group of young men who 'work hard and * * * play hard.' It may be expected that in the light of human experience the defendants were aware of the fact that among this number, as in any group of young men, would be a certain number not concerned with the serious work of the convention. It must have been apparent to the defendants that the ready availability of free intoxicants would not tend to repress the urges of this element. After the convention had been in session for several days, it came to the attention of the management of the hotel that the premises, both inside and out, had been littered with the debris of broken glasses and bottles. They became aware of the considerable damage to their property and received complaints from a pedestrian and policemen that water bags were being thrown from the hotel upon the sidewalk. The accumulated effect of these happenings was to the executive director of the hotel a 'harrowing experience.' This was all before the accident to the plaintiff occurred. That the dropping of objects from the hotel windows by certain of those occupying the premises was within the range of foreseeability is evidenced by the fact that the hotel company, prior to the convention, took the precaution of cutting the corners out of hotel laundry bags so as to [254 Minn. 384] prevent their use as water containers. Moreover, it seems to us that in light of what had happened prior to the accident the management of the hotel must have been aware of the fact that in the indiscriminate throwing of glasses, bottles, and other objects in and about the hotel they might expect as part of that course of conduct that objects might be thrown from the windows to the sidewalk below. It is our view that these facts and circumstances presented a question for the jury to determine as to whether the negligent act which caused the plaintiff's injuries was within the defendants' range of foreseeability.

We turn next to inquire as to what precautions were taken by the defendants to protect the plaintiff as a member of the public from such foreseeable risk. It appears from the record that, after the hotel menager received the report that water bags had been dropped to the street, he said they patrolled the house and in rooms where they found 'they were doing entertaining we told them to be careful about throwing out anything.' He said that it wouldn't have done any good to try to find out the room from which the water bags were thrown, apparently for the reason that the convention was 'out of control.' He said the loss of control occurred every night 'Any time after seven o'clock in the evening, from seven on.' There is this testimony:

[95 N.W.2d 666] 'Q. Would you say yes or no that it was the most harrowing experience you had as a hotel operator of that hotel? A. Well, I would say yes.

'Q. And isn't it true that you and the other officers of the hotel were all of that view even before the convention was over?

'A. Well, I would say, yes.

'Q. Now, is it true at the conclusion of this convention that you and the other members of the hotel management were shocked by the damage done to your premises during the course of this convention? A. Yes, we were.'

The manager of the hotel was asked if, when Miss Connolly was injured, he did not say, 'Well, here is another of those incidents. I will be glad when this * * * convention is over.' He did not deny making [254 Minn. 385] that statement and admitted that he might have made it because that was the way he felt at the time it happened. There is this testimony from the housekeeper:

'Q. But when you have in combination in a matter of a couple days time mirrors broken, recessed lights in the hallway broken, permanent quiet signs attached to the wall torn off, when you have the exit lights damaged, when you have the hall fixtures damaged, when you have the screens damaged, as you described, when you have wash bowls torn off of the wall in the men's room, when you have doors kicked in, when you have mouldings torn off, when you have seven holes drilled into a door of the hotel, wouldn't you say that is a shocking experience over a two day period of time?

'A. Yes, I think it is.

'Q. The like of which you had never seen before in that interval of time with any convention in that hotel. A. That's right. It really is true.'

The record establishes that the defendants made no complaint as to the conduct of the guests and invitees to any responsible official of the Junior Chamber of Commerce. Had one been made, it may be assumed that the officers of the convention could have controlled their own members. Neither did the management of the hotel complain to the authorities or ask for additional police protection. On the record we are satisfied that it was plainly a question for the jury to say whether under these unusual circumstances the defendants should have anticipated an accident such as happened and whether they should have taken some precautions by way of securing additional police or watchmen to supervise the conduct of their patrons. It is apparent from the record that, after the hotel management became aware of the disorderly character of the convention, it took no further affirmative action to protect the interests of the public. We are of the view that, once it became apparent to the defendants that the preliminary precautions which had been taken were not sufficient to protect the public from foreseeable risks which might arise from the disorderly character of the convention, the hotel had an affirmative duty to take further precautions [254 Minn. 386] to protect the public. Without undertaking to state precisely what precautions should have been taken by the defendants under the circumstances, we think that evidence of the defendants' failure to hire additional guards, to secure additional police protection, or to appeal to responsible officers of the convention presented a fact question as to whether the defendants exercised due care commensurate with the circumstances. The argument may well be advanced that by 'turning the other cheek,' to use an expression of the hotel's managing director, the defendants acquiesced in the misuse of their [95 N.W.2d 667] property and became for all practical purposes participants in such misuse.

The defendants further contend that there can be no liability to the plaintiff for the reason that she was neither an invitee nor patron of their establishment. They argue that they cannot be held liable for the unauthorized acts of a third person who, while on their premises, causes injury to an occupant of a public sidewalk. It may be briefly said that, even though the plaintiff was not a patron or a guest of the defendants, a relationship existed between them at the time and place of the injury which gave rise to a legal duty on the part of the defendants. That relationship imposed an affirmative duty upon the defendants to guard the public from danger flowing from the use of their property by their guests and invitees, even though that use was not authorized by the defendants. There was a duty on the part of the defendants to members of the public at large to protect them from injury by forces set in motion as a result of the use which the defendants permitted to be made of their property. Here the plaintiff was a pedestrian within her rights as an occupant of the sidewalk on a street adjacent to the defendants' hotel. There was evidence from which a jury could find that she was injured as a result of disorderly conduct upon the premises, the risk of which was foreseeable and in regard to which the defendants after notice failed to take measures to protect her as a member of the public. In Priewe v. Bartz, 249 Minn. 488, 491, 83 N.W.2d 116, 119, in discussing the rights of a patron of a 3.2 beer establishment we said that such a person 'has a right to rely on the belief that he is in an orderly house and that its operator, personally or by his delegated employee, will exercise reasonable care 'to the end that the doings in [254 Minn. 387] the house shall be orderly." By the same token it may be said that a pedestrian using a sidewalk adjacent to a hotel where intoxicating liquor is sold and dispensed may assume that the owner will exercise reasonable care to the end that the acts and conduct permitted upon the property will not expose a member of the public to the risk of bodily harm.

The conclusions we reach are supported by respected authority. In Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114, a pedestrian was injured in an accident resulting from the throwing of a paper bag containing water from an upper floor of the defendant hotel while a convention of the Veterans of Foreign Wars was in progress. The manager of the hotel admitted that objects had been thrown from the hotel on every night of the convention. It was the contention of the defendant that in order to impose liability it was necessary to establish that the proprietor of the hotel had reason to foresee that the object would be dropped or thrown so that the proprietor would have notice and an opportunity to exercise reasonable care to prevent the occurrence; that the guests to whom the defendant had assigned rooms were entitled to courteous treatment; and that the defendant had no right of access to the rooms of guests. The court held, however, that the guests were under a duty to refrain from unlawful and disorderly conduct which endangered the safety of others; that a willful violation of that duty forfeited the right of the guest to possession of the room; and that when the defendant became aware of the existence of the disorderly conduct of the guest it was its duty to exercise reasonable care to abate the condition. There, as here, there was no evidence to identify the particular room from which the object was thrown. Nevertheless, the court held that it was the duty of the defendant in the exercise of reasonable care to identify the offenders and the rooms used by them in the perpetration of the wrong. In that case the house officer had checked various rooms occupied by the guests and made inquiry as to whether or not they had thrown water into the streets. The night manager also went across the street and watched windows of the hotel but could not [95 N.W.2d 668] identify any of the rooms from which the objects were thrown. The court there said (229 Mo.App. 916, 83 S.W.2d 118):

[254 Minn. 388] 'The mere failure of defendant to exercise ordinary care to identify the rioters was not sufficient to fix liability upon it. The defendant was not liable unless it could by the exercise of ordinary care have abated the condition in time to have prevented the injury to plaintiff. The evidence was sufficient to allow the jury to find that the defendant, though it had the right to evict the wrongdoers, negligently failed to identify them and, hence, never attempted to exercise such right. Having the legal right to evict the offenders, this court cannot say as a matter of law that the defendant could not by the exercise of reasonable care have enforced this right prior to the time plaintiff was injured. The question was one for the jury.'

See, also, Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757; Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505; Fortier v. Hibernian Bldg. Ass'n, 315 Mass. 446, 53 N.E.2d 110; Southern Enterprises of Texas, Inc. v. Marek, Tex.Civ.App., 68 S.W.2d 384. Admittedly under the facts in the Gore case there were more frequent incidents of objects having been thrown from the hotel by its occupants. But it does not seem to us that the duration or frequency of the disorderly acts is determinative. The issue is whether the proprietors of the hotel had notice of the disorderly behavior of their guests and, after having had such notice, whether they took such steps as a person of ordinary prudence would take to protect others from foreseeable hazards resulting from the disorderly conduct of their guests.

We think the authorities relied upon by the defendants may be distinguished. Wolk v. Pettsburgh Hotels Co., 284 Pa. 545, 131 A. 537, 42 A.L.R. 1081, where it was held that an innkeeper is not liable for injuries caused by a transient guest's placing of objects on a window sill, which objects fell to the street injuring a person in an automobile, and Larson v. St. Francis Hotel, 83 Cal.App.2d 210, 211, 188 P.2d 513, 514, where a pedestrian was injured when a guest of the defendant hotel as 'the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on V--J Day' tossed an armchair out of a hotel window, may be distinguished in that they deal with instances of sporadic or isolated acts of which the owner did not have notice and in regard to which he had no opportunity to take steps to [254 Minn. 389] remove the danger. We think that Holly v. Meyers Hotel & Tavern, Inc., 9 N.J. 493, 89 A.2d 6, may also be distinguished. Under the facts in that case the court concluded (9 N.J. 496, 89 A.2d 7): '* * * there was no occasion for any affirmative action' during the 2-hour period between the time the guests of the hotel who were responsible for the accident were warned by the hotel management and the time the accident occurred. These cases do not deal with facts establishing a course of disorderly conduct continuing over a period of days and under circumstances where the defendants admitted that they had lost control of the orderly management of their property and failed to do anything about it.

The defendants contend that the proof is circumstantial and that there is no evidence that the object which struck the plaintiff came from the hotel. The plaintiff was struck in the eye by a mass of moist dirt or earth. The jury could find that this object was not an accumulation of dirt which fell from the structure. The record indicates that periodic inspections were made of the exterior of the building so that there would be no sizeable collection of dirt on it. Nor was it likely that the mass of dirt or earth came from some other building. From the physical location of the place where the accident occurred and the surrounding structures, there was ample evidence from which the jury could find that the place from which the mass of dirt or earth came would be the Nicollet [95 N.W.2d 669] Hotel property. The record before us indicates that the Nicollet Hotel is a 12-story structure. The accident occurred approximately 100 feet from Washington Avenue and 100 feet from the garage entrance south of the hotel. Across the street from the hotel on Nicollet Avenue are two 4-story buildings. Nicollet Avenue is 50 feet in width. There was nothing unusual about the weather conditions and no evidence of a wind which might carry a mass of mud from a distant source. There is no evidence to indicate that the mass of mud came from a vehicle or other pedestrian. We think that under the facts in this case the evidence presents inferences which make the question of where the mass of mud came from one for the jury.

We have said many times that the law does not require every fact and circumstance which make up a case of negligence to be proved by [254 Minn. 390] direct and positive evidence or by the testimony of eyewitnesses, and that circumstantial evidence alone may authorize a finding of negligence. Negligence may be inferred from all the facts and surrounding circumstances, and where the evidence of such facts and circumstances is such as to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made. Standafer v. first Nat. Bank, 243 Minn. 442, 448, 68 N.W.2d 362, 366; 38 Am.Jur., Negligence, § 333; Westling v. Holm, 239 Minn. 191, 58 N.W.2d 252.

Reversed.

THOMAS GALLAGHER, Justice (dissenting).

The question presented is whether defendant should have reasonably anticipated that someone would throw or drop some substance from a window on the Nicollet Avenue side of the hotel shortly after midnight the last day of the convention and whether it had taken reasonable precautions to prevent such conduct.

It is well settled that an innkeeper is liable to third persons for the act of a guest only where he knew, or by the exercise of ordinary care could have known, that the guest was likely to do some act that would result in injury to such third person. 28 Am.Jur., Innkeepers, § 138; Annotation, 42 A.L.R. 1088. The duty rests upon him to protect such persons from foreseeable risks attendant upon the maintenance and operation of the property and to exercise reasonable care to keep it in such condition so as not to endanger them. He is not required to guard against every conceivable or possible danger, but only against those which appear reasonably probable. Kepphahn v. Martin Hotel Co., 230 Iowa 739, 298 N.W. 901; Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114; Wolk v. Pittsburgh Hotels Co., 284 Pa. 515, 131 A. 537, 42 A.L.R. 1081; Holly v. Meyers Hotel & Tavern Inc., 9 N.J. 493, 89 A.2d 6.

When plaintiff was injured shortly after midnight, the convention had been in progress for 3 days and had reached its final stages. It had been quite disorderly. There is testimony that on previous days some of the guests had thrown or dropped ice cubes and in one instance a screen from the upper windows of the hotel. There is no evidence that [254 Minn. 391] acts of this kind had been a continuous practice during the convention, or that they had been engaged in at all on the day of plaintiff's injury. There is no evidence that defendant knew that any such misconduct was taking place just prior to the time of the occurrence involved. Defendant had retained two men regularly employed at the hotel and had six more men to patrol its corridors and prevent disorders during the convention. In addition the convention corporation had employed two men for this purpose, and the police of the city continued to maintain a regular 24-hour beat on the sidewalks adjacent to the hotel. During previous days of the convention, when defendant's manager had been notified that objects had been thrown from hotel windows, he had promptly [95 N.W.2d 670] checked the rooms in which he suspected such misconduct was occurring, but in each instance their occupants had denied that anyone therein had been guilty of the offenses described.

It is difficult to speculate as to what further precautions should reasonably have been required of defendant without making it an absolute insurer. Obviously, it could not direct its employees to enter guest rooms at random or to remain therein to prevent possible misconduct when it lacked evidence that any misconduct was occurring or was contemplated by room occupants. Not only would such procedure deprive guests of room privileges for which they had paid, but, if carried to its logical conclusion, it would require that defendant, to be exonerated from any claim of negligence, employ and station a guard in every convention guest room of the hotel during the entire convention. As stated in Larson v. St. Francis Hotel, 83 Cal.App.2d 210, 213, 188 P.2d 513, 515:

'* * * The most logical inference * * * is that the chair was thrown * * * from a window. * * * this occurrence is not such as ordinarily does not happen without the negligence of the party charged, but, rather, one in which the accident ordinarily might happen despite the fact that the defendants used reasonable care and were totally free from negligence. To keep guests and visitors from throwing furniture out windows would require a guard to be place in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.'

[254 Minn. 392] The situation here is distinguishable from that in Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114, where convention guests had thrown placards, feathers, telephone books, pillows, waterfilled sacks, laundry bags, and like items from hotel windows for 3 days in a 'regular deluge'; and from that in Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505, where, for some time prior to plaintiff's injury, objects were being thrown about a theater and the theater owner had done nothing to stop such misconduct.

The majority opinion recites a number of acts of misconduct on the part of the convention guests which seem to be entirely irrelevant to the issue to be determined. The fact that on a previous day, following the convention parade, beer bottles and beer cans had been left on the sidewalk adjacent to the Hennepin Avenue side of the hotel is not evidence that such articles had been thrown or dropped from the hotel windows. The same is true as to beer bottles and beer cans placed upon the third-floor fire escape on the day prior to the accident. Evidence of objects being dropped or thrown from the hotel on two or three isolated occasions is far from evidence of a deluge which might require prompt and positive preventative measures by a hotel proprietor as in Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 915, 83 S.W.2d 114, 117. An animal mascot in the hotel lobby and others on an upper floor of the hotel; broken glass on the sidewalk near the garage; and the firing of guns in the hotel lobby bear no relationship to defendant's obligation to use reasonable care to prevent articles from being thrown from its upper windows. Evidence of wet carpets, broken chairs, broken screens, and soiled walls inside the hotel, all resulting from misconduct on the part of convention guests, is likewise totally unrelated to the issue to be determined here.

It is suggested that All such factors might support a finding of negligence based upon defendant's failure to 'properly police the premises' or to 'furnish a sufficient number of servants to afford reasonable protection.' As pointed out above, to satisfy such a requirement would impose upon a hotel owner the obligation of stationing a guard in each room in which a convention guest was quartered so that its occupants might be kept under constant surveillance [95 N.W.2d 671] day and night. [254 Minn. 393] Such is not the obligation which has been imposed upon innkeepers or hotel owners by any decision on this subject. As stated in Bruner v. Seelbach Hotel Co., 133 Ky. 41, 49, 117 S.W. 373, 376, where a hotel owner was absolved from liability for the action of a guest in throwing a beer bottle into the street:

'* * * It is only when they (the hotel owners) know, or by the exercise of ordinary care could know, that the guest's conduct is such that injury will naturally result to others, that they have the right to eject the guest, or take precautions to control his conduct.'

The rule of conduct prescribed by the majority opinion would seem to eliminate any possibility of an innekeeper or hotel owner escaping the charge of negligence in connection with any injuries which might occur during a hotel convention regardless of any reasonable care or precautions taken by them.

MATSON, Justice (dissenting).

I concur in the dissent of Mr. Justice THOMAS GALLAGHER.

KNUTSON, Justice (dissenting).

I concur in the dissent of Mr. Justice THOMAS GALLAGHER.

[1] Pfeifer v. Standard Gateway Theater, Inc., 259 Wis. 333, 48 N.W.2d 505.

[2] Ibid.

[3] Zurich General Accident & Liability Ins. Co. v. Childs Co., 253 N.Y. 324, 328, 329, 171 N.E. 391, 392, and cases there cited.

[4] 28 Am.Jur., Innkeepers, §§ 54 and 55; Peck v. Gerber, 154 Ore. 126, 59 P.2d 675, 106 A.L.R. 996; 65 C.J.S., Negligence, § 45c; Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757.

25 Cal.2d 486

Ybarra

v.

Spangard

L. A. No. 19067. In Bank.

Dec. 27, 1944.

JOSEPH ROMAN YBARRA, Appellant, v. LAWRENCE C. SPANGARD et al., Respondents.

COUNSEL

Marion P. Betty and Wycoff Westover for Appellant.

Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury and Vernon W. Hunt for Respondents.

OPINION

GIBSON, C.J.

This is an action for damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation. The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.

On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for [25 Cal.2d 488] the operation, pulling his body to the head of the operating table and, according to plaintiff's testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.

Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him diathermy treatments while he remained in the hospital. The pain did not cease, but spread down to the lower part of his arm, and after his release from the hospital the condition grew worse. He was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work, wearing his arm in a splint on the advice of Dr. Spangard.

Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, plaintiff's condition was due to trauma or injury by pressure or strain, applied between his right shoulder and neck.

Plaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that plaintiff's injury was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.

Plaintiff's theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants takes the position that, assuming that plaintiff's condition was in fact the result of an injury, there is no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. They attack plaintiff's [25 Cal.2d 489] action as an attempt to fix liability "en masse" on various defendants, some of whom were not responsible for the acts of others; and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved. Their main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.

The doctrine of res ipsa loquitur has three conditions: "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134]; Moore v. Steen, 102 Cal.App. 723 [283 P. 833]; Armstrong v. Wallace, 8 Cal.App2d 429 [47 P.2d 740]; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228]; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425]; see Shain, Res Ipsa Loquitur, 17 So.Cal.L. Rev. 187, 196.)

There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which [25 Cal.2d 490] arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that "the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person." (9 Wigmore, Evidence [3d. ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Ross v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.R.A.N.S. 298]; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, "by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them."

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. (See Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228].) If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering injuries [25 Cal.2d 491] during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

The condition that the injury must not have been due to the plaintiff's voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent. We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result. See (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App 352 [277 P. 134].)

The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant's control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.

We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeans commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for [25 Cal.2d 492] failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would be liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.

In this connection, it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the doctor from responsibility for their negligence. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740]; Ault v. Hall, 119 Ohio St. 422 [164 N.E. 518, 60 A.L.R. 128]; and see, also, Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 233].)

It may appear at the trial that, consistent with the principles outlined above, one or more defendants will be found liable and others absolved, but this should not preclude the application of the rule of res ipsa loquitur. The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.

The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting [25 Cal.2d 493] from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.

An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. See Metx v. Southern Pac. Co., 51 Cal.App.2d 260, 268 [127 P.2d 670].) In the bursting bottle cases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler's possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [150 P.2d 436].) Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. (See Smith v. O'Donnell, 215 Cal. 714 [12 P.2d 933]; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur "should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries." (Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231]; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 435], where the court refers to the "instrumentalities" as including "the unconscious body of the plaintiff.")

In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e.g., preparation for surgery by nurses [25 Cal.2d 494] and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

The judgment is reversed.

Shenk, J., Curtis, J., Edmonds, J., Carter, J., and Schauer, J., concurred.

C. Nicholas Pereos, Reno, for appellant.

Cromer, Barker & Michaelson, Las Vegas, for respondents Knobbe.

McDonald, Carano, Wilson, Bergin & Bible, Reno, for respondents Doherty.

OPINION

MOWBRAY, Justice:

The sole issue presented is whether the doctrine of res ipsa loquitur may be invoked to recover damages from a hotel's guests for a fire that originated in one of the guests' rooms. The district judge on a motion for summary judgment held that [93 Nev. 202] under the facts presented the doctrine was not applicable. We agree and affirm.

A fire was discovered in a hotel room in Las Vegas. The cause of the fire was determined to be a cigarette. On the night of the fire, the room was occupied by Respondents John and Marilyn Doherty. The Dohertys were traveling in the company of Respondents Andrew and Geraldine Knobbe, who occupied an adjoining, connecting room.

A complaint was filed by appellant insurance company against respondents, claiming subrogation to the rights of the hotel and alleging negligence predicated both on a standard evidentiary negligence theory and on the doctrine of res ipsa loquitur. Respondents moved for summary judgment. The court denied the motion, on the ground that there was a conflict of material fact under the standard evidentiary theory; however, the court granted the motion as to the res ipsa loquitur theory of liability. Appellant then stipulated that there was insufficient evidence to establish negligence without the aid of res ipsa loquitur. This appeal followed.

In Bialer v. St. Mary's Hosp., 83 Nev. 241, 243, 427 P.2d 957, 958 (1967), this court said:

For the doctrine of res ipsa loquitur to apply, three conditions must be met: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff.

Evidence was presented that the hotel had 18 keys to the room where the fire occurred. The staff was not questioned to determine whether anyone had entered the room after the four respondents had departed and before the discovery of the fire. Further, appellant failed to demonstrate [562 P.2d 826] that respondents had exclusive control or joint control of the instrumentality causing the damage. Taken in the light most favorable to the appellant, the evidence established that all four respondents were smoking in the room. While each had exclusive control of his or her own cigarette, there is no evidence as to which cigarette started the fire. Traditionally, such a failure defeats the plaintiff's case. There have been cases, however, in which res ipsa loquitur has been applied to multiple defendants, thereby shifting the burden to each individual defendant to present exculpating evidence. Appellant relies upon the leading case of Ybarra v. Spangard, 25 Cal.2d 486, [93 Nev. 203] 154 P.2d 687 (1944), in urging this theory in this case. In Ybarra, an appendectomy patient who awoke with a shoulder injury was permitted to invoke the doctrine of res ipsa loquitur against several medical petitioners in whose care he had been while unconscious. No showing had been made as to which defendant or what instrumentality had caused the injury. The court concluded this did not bar the doctrine, holding, however, that the ruling was limited to the fact situation presented.

The rule has also been applied, upon occasion, in a variety of other fact situations: Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 164 A. 423 (1933) (plaintiff injured by falling sign sued owner of building and light company which erected and maintained sign); Schroeder v. City & County Sav. Bank, 293 N.Y. 370, 57 N.E.2d 57 (1944) (plaintiff injured by collapse of construction barricade sued owner of building and two construction companies); Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex. 1965) (plaintiff injured when elevator went into free fall sued owner of building and company which installed and maintained elevator); Burr v. Sherwin-Williams Co., 258 P.2d 58 (Cal.App.1953) (plaintiff whose cotton crop was damaged by insecticide spray sued manufacturer of spray, spraying company, and local cooperative which advised use of spray); Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574 (1951) (plaintiff injured by a falling ladder sued lessee of premises and carpenter doing repairs on premises).^[1] In the foregoing cases, the instrumentality causing the damage was known. While the plaintiff had not established which defendant had been negligent, he had established that each was at some time or to some extent responsible for that instrumentality. Only the cases involving unconscious patients lack direct evidence as to both the particular defendant and the particular instrumentality responsible, as does the instant case.

More commonly, it has been held that when any of several defendants wholly independent of each other may be responsible for plaintiff's injury, the doctrine of res ipsa loquitur cannot [93 Nev. 204] be applied. See, e.g., Estes v. Estes, 127 S.W.2d 78 (Mo.App.1939); Gerber v. Faber, 54 Cal.App.2d 674, 129 P.2d 485 (1942); Wolf v. American Tract Soc'y, 164 N.Y. 30, 58 N.E. 31 (1900). In Wolf, the plaintiff had been injured by a brick falling from a building under construction in which 19 independent contractors were at work. The court rejected the lower court's application of res ipsa loquitur to two of these contractors, which would have required them to come forward with proof of their innocence. It concluded, at 32, that:

Cases must occasionally happen where the person really responsible for a personal injury cannot be identified or pointed out by proof, as in this case; and then it is far better and more consistent with reason and law that the injury should go without redress, than that innocent persons should be held responsible, upon [562 P.2d 827] some strained construction of the law developed for the occasion.

Clearly, the doctrine has no application in this case, where there is lacking even a scintilla of evidence indicating which respondent had control of the cigarette that started the fire.

The order granting summary judgment is affirmed.^[2]

BATJER, C.J., and ZENOFF, THOMPSON and GUNDERSON, JJ., concur.

[1] In his dissent in Raber, Justice Traynor noted, 226 P.2d at 579, the danger of extending the Ybarra holding to other fact situations:

Under the rule of the Ybarra case as here applied a plaintiff who has suffered an injury of a kind that ordinarily does not occur in the absence of someone's negligence may establish a cause of action against all persons who had an opportunity to cause the injury. A plaintiff, for instance, who is struck on the head by a flower pot falling from a multistoried apartment building may recover judgment against all the tenants unless the innocent tenants are able to identify the guilty one.

[2] As the parties have not raised the question, we do not here decide whether an insurance carrier indeed has a right of subrogation where a hotel purchases insurance to protect against negligence of its guests. See Central Nat'l Ins. Co. v. Dixon, 93 Nev. ---, 559 P.2d 1187 (1977).

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Page 210

        Philip J. Schmidt, Chicago, IL (argued), Justin J. Tedrowe, Woodridge, IL, for plaintiff-appellant.

        John C. Kiely, Dennis M. Glynn, John J. Zachara, Robert H. Riley, Thomas P. Heneghan (argued), Schiff, Hardin & Waite, Chicago, IL, for defendants-appellees.

        Before POSNER, Chief Judge, ROVNER, Circuit Judge, and MIHM, District Judge. ^*

        POSNER, Chief Judge.

        Richard Welge, forty-something but young in spirit, loves to sprinkle peanuts on his ice cream sundaes. On January 18, 1991, Karen Godfrey, with whom Welge boards, bought a 24-ounce vacuum-sealed plastic-capped jar of Planters peanuts for him at a K-Mart store in Chicago. To obtain a $2 rebate that the maker of Alka-Seltzer was offering to anyone who bought a "party" item, such as peanuts, Godfrey needed proof of her purchase of the jar of peanuts; so, using an Exacto knife (basically a razor blade with a handle), she removed the part of the label that contained the bar code. She then placed the jar on top of the refrigerator, where Welge could get at it without rooting about in her cupboards. About a week later, Welge removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator, all without incident. A week after that, on February 3, the accident occurred. Welge took down the jar, removed the plastic cap, spilled some peanuts into his left hand to put on his sundae, and replaced the cap with his right hand--but as he pushed the cap down on the open jar the jar shattered. His hand, continuing in its downward motion, was severely cut, and is now, he claims, permanently impaired.

        Welge brought this products liability suit in federal district court under the diversity jurisdiction; Illinois law governs the substantive issues. Welge named three defendants (plus the corporate parent of one--why we don't know). They are K-Mart, which sold the jar of peanuts to Karen Godfrey; Planters, which manufactured the product--that is to say, filled the glass jar with peanuts and sealed and capped it; and Brockway, which manufactured the glass jar itself and sold it to Planters. After pretrial discovery was complete the defendants moved for summary judgment. The district judge granted the motion on the ground that the plaintiff had failed to exclude possible causes of the accident other than a defect introduced during the manufacturing process.

        No doubt there are men strong enough to shatter a thick glass jar with one blow. But Welge's testimony stands uncontradicted that he used no more than the normal force that one exerts in snapping a plastic lid onto a jar. So the jar must have been defective. No expert testimony and no fancy doctrine are required for such a conclusion. A nondefective jar does not shatter when normal force is used to clamp its plastic lid on. The question is when the defect was introduced. It could have been at any time from the manufacture of the glass jar by Brockway (for no one suggests that the defect might have been caused by something in the raw materials out of which the jar was made) to moments before the accident. But testimony by Welge and Karen Godfrey, if believed--and at this stage in the proceedings we are required to believe it--excludes all reasonable possibility that the defect was introduced into the jar after Godfrey plucked it from a shelf in the K-Mart store. From the shelf she put it in her shopping cart. The checker at the check-out counter scanned the bar code without banging the jar. She then placed the jar in a plastic bag. Godfrey carried the bag to her car and put it on the floor. She drove directly home, without incident. After the bar-code portion of the label was removed, the jar sat on top of the refrigerator except for the two times Welge removed it to take peanuts out of it. Throughout this process it was not, so far as anyone knows, jostled, dropped, bumped, or otherwise subjected to stress beyond what is to be expected in the ordinary use of the product. Chicago is not Los Angeles; there were no earthquakes. Chicago is not Amityville either; no supernatural interventions are alleged. So the defect must have been introduced earlier, when the jar was in the hands of the defendants.

        But, they argue, this overlooks two things. One is that Karen Godfrey took a knife to the jar. And no doubt one can weaken a glass jar with a knife. But nothing is more common or, we should have thought, more harmless than to use a knife or a razor

Page 211

        The invitation, it is true, was issued by K-Mart, not by the other defendants; and we do not know their involvement, if any, in the promotion. As to them, the defense of misuse must fail, at this stage of the proceedings, for two other reasons. The evidence does not establish with the certitude required for summary judgment that the use of an Exacto knife to remove a label from a jar is a misuse of the jar. And in a regime of comparative negligence misuse is not a defense to liability but merely reduces the plaintiff's damages, unless the misuse is the sole cause of the accident.

        Even so, the defendants point out, it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. That is true--there are no metaphysical certainties--but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. The plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants. The doctrine of res ipsa loquitur teaches that an accident that is unlikely to occur unless the defendant was negligent is itself circumstantial evidence that the defendant was negligent. The doctrine is not strictly applicable to a products liability case because unlike an ordinary accident case the defendant in a products case has parted with possession and control of the harmful object before the accident occurs. St. Paul Fire & Marine Ins. Co. v. Michelin Tire Corp., 12 Ill.App.3d 165, 298 N.E.2d 289, 297-98 (1973). But the doctrine merely instantiates the broader principle, which is as applicable to a products case as to any other tort case, that an accident can itself be evidence of liability. Id., 298 N.E.2d at 298; Doyle v. White Metal Rolling & Stamping Corp., 249 Ill.App.3d 370, 188 Ill.Dec. 339, 346 and n. 3, 618 N.E.2d 909, 916 and n. 3 (1993). If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold. The second condition (as well as the first) has been established here, at least to a probability sufficient to defeat a motion for summary judgment. Normal people do not lock up their jars and cans lest something happen to damage these containers while no one is

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        Of course, unlikely as it may seem that the defect was introduced into the jar after Karen Godfrey bought it if the plaintiffs' testimony is believed, other evidence might make their testimony unworthy of belief--might even show, contrary to all the probabilities, that the knife or some mysterious night visitor caused the defect after all. The fragments of glass into which the jar shattered were preserved and were examined by experts for both sides. The experts agreed that the jar must have contained a defect but they could not find the fracture that had precipitated the shattering of the jar and they could not figure out when the defect that caused the fracture that caused the collapse of the jar had come into being. The defendants' experts could neither rule out, nor rule in, the possibility that the defect had been introduced at some stage of the manufacturing process. The plaintiff's expert noticed what he thought was a preexisting crack in one of the fragments, and he speculated that a similar crack might have caused the fracture that shattered the jar. This, the district judge ruled, was not enough.

        But if the probability that the defect which caused the accident arose after Karen Godfrey bought the jar of Planters peanuts is very small--and on the present state of the record we are required to assume that it is--then the probability that the defect was introduced by one of the defendants is very high. In principle there is a third possibility--mishandling by a carrier hired to transport the jar from Brockway to Planters or Planters to K-Mart--but we do not even know whether a carrier was used for any of these shipments, rather than the shipper's own trucks. Apart from that possibility, which has not been mentioned in the litigation so far and which in any event, as we are about to see, would not affect K-Mart's liability, the jar was in the control of one of the defendants at all times until Karen Godfrey bought it.

        Which one? It does not matter. The strict-liability element in modern products liability law comes precisely from the fact that a seller subject to that law is liable for defects in his product even if those defects were introduced, without the slightest fault of his own for failing to discover them, at some anterior stage of production. Crowe v. Public Building Comm'n, 74 Ill.2d 10, 23 Ill.Dec. 80, 81, 383 N.E.2d 951, 952 (1978); Thomas v. Kaiser Agricultural Chemicals, 81 Ill.2d 206, 40 Ill.Dec. 801, 805, 407 N.E.2d 32, 36 (1980); Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984). So the fact that K-Mart sold a defective jar of peanuts to Karen Godfrey would be conclusive of K-Mart's liability, and since it is a large and solvent firm there would be no need for the plaintiff to look further for a tortfeasor. This point seems to have been more or less conceded by the defendants in the district court--the thrust of their defense was that the plaintiff had failed to show that the defect had been caused by any of them--though this leaves us mystified as to why the plaintiff bothered to name additional defendants.

        And even if, as we doubt, the plaintiff took on the unnecessary burden of proving that it is more likely than not that a given defendant introduced the defect into the jar, he might be able to avail himself of the rule of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944), and force each defendant to produce some exculpatory evidence. Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir.1992). In fact K-Mart put in some evidence on the precautions it takes to protect containers of food from being damaged by jarring or bumping. A jury convinced by such evidence, impressed by the sturdiness of jars of peanuts (familiar to every consumer), and perhaps perplexed at how the process of filling a jar with peanuts and vacuum-sealing it could render a normal jar vulnerable to collapsing at a touch, might decide that the probability that the defect had been introduced by either K-Mart or Planters was remote. So what? Evidence of K-Mart's care in handling peanut jars would be relevant only to whether the defect was introduced after sale; if it was introduced at any

Page 213

        In reaching the result she did the district judge relied heavily on Erzrumly v. Dominick's Finer Foods, Inc., 50 Ill.App.3d 359, 8 Ill.Dec. 446, 365 N.E.2d 684 (1977). A six-year-old was injured by a Coke bottle that she was carrying up a flight of stairs to her family's apartment shortly after its purchase. The court held that the plaintiff had failed to eliminate the possibility that the Coke bottle had failed because of something that had happened after it left the store. If, as the defendants in our case represent, the bottle in Erzrumly "exploded," that case would be very close to this one. A nondefective Coke bottle is unlikely to explode without very rough handling. The contents are under pressure, it is true, but the glass is strengthened accordingly. But it was unclear in Erzrumly what had happened to the bottle. There was testimony that the accident had been preceded by the sound of a bottle exploding but there was other evidence that the bottle may simply have been dropped and have broken--the latter being the sort of accident that happens commonly after purchase. Although the opinion contains some broad language helpful to the defendants in the present case, the holding was simply that murky facts required the plaintiff to make a greater effort to determine whether the product was defective when it left the store. Here we know to a virtual certainty (always assuming that the plaintiff's evidence is believed, which is a matter for the jury) that the accident was not due to mishandling after purchase but to a defect that had been introduced earlier.

        Even the narrow holding of Erzrumly is probably wrong, in light of bottle and other container cases decided by Illinois courts both before and after, Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976); Mabee v. Sutliff & Case Co., 404 Ill. 27, 88 N.E.2d 12 (Ill.1949); Fullreide v. Midstates Beverage Co., 70 Ill.App.3d 758, 27 Ill.Dec. 107, 388 N.E.2d 1070 (1979); Roper v. Dad's Root Beer Co., 336 Ill.App. 91, 82 N.E.2d 815 (1948), as well as by courts of other states. E.g., Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383, 741 P.2d 811 (1987) (per curiam); Virgil v. "Kash N' Karry" Service Corp., 61 Md.App. 23, 484 A.2d 652, 657 (Md.App.1984); Renninger v. Foremost Dairies, Inc., 171 So.2d 602, 604 (Fla.App.1965). Right or wrong, Erzrumly is plainly contrary to Fullreide; and obviously when state courts of the same level reach opposite conclusions, a federal court in a diversity case is not bound to follow either.

        REVERSED AND REMANDED.

---------------

* Hon. Michael M. Mihm of the Central District of Illinois.