Maryland Law Review

Volume 10 | Issue 4 Article 3

Res Ipsa Loquitur

L. Whiting Farinholt Jr.

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Recommended Citation
L. W. Farinholt Jr., Res Ipsa Loquitur, 10 Md. L. Rev. 337 (1949)
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 Comment and Casenotes
RES IPSA LOQUITUR
By L. WHITING FAIINHOLT, JR.*
One of the more frequently expressed maxims arising
in tort actions is that of res ipsa loquitur. However, not-
withstanding its repeated use, the true meaning and effect
of its application are obscure. This uncertainty is appar-
ently the result of the tendency of the courts to apply
the doctrine beyond its original extent and to treat the
phrase as a nostrum capable of resolving a host of problems
of proof.
It is the purpose of this comment to give a brief state-
ment of the present status of the "doctrine" in Maryland.'
In doing so, however, it must be remembered that the
court has not dealt with the maxim with any great clarity.
Reference will be made to Maryland cases, in the main, in
order to illustrate the types of situations to which the
maxim has been applied in this state and to make an at-
tempt to ascertain the usual consequence of such applica-
tion.
The term has been variably defined. Literally trans-
lated it is "the thing speaks for itself". It is a "phrase often
used in actions for injury by negligence where no proof of
negligence is required beyond the accident itself, which is
such as necessarily to involve negligence".2
Originally, the expression res ipsa loquitur was applied
to a case where usury was apparent on the face of an instru-
ment sued upon., In 1863, the phrase was first used in its
present application in Byrne v. Boadle4 where the plaintiff
was injured by a barrel which fell from the defendant's
window. In that case, Pollock, C. B., said, "There are many
accidents from which no presumption of negligence can
arise, but this is not true in all cases. It is the duty of
persons who keep barrels in a warehouse to take care that
they do not roll out, and I think that such a case would,
* A.B., 1932 Johns Hopkins University; LL.B., 1940 Univ. of Maryland
School of Law: LL.M., 1947 Harvard Law School, Professor of Law, Uni-
versity of Maryland -School of Law.
I For a discussion of similar purpose, though from a somewhat different
viewpoint, see Thomsen, Presumptions and Burden of Proof in Res Ipsa
Loquitur Cases in Maryland (1939) 3 Md. L. R. 285.
2BouviER, LAW DICTIONARY (8th ed. 1914) 2908; PRossrR, TORTS (1941)
§43.
'Roberts v. Tremayne, 1614 Cro. Jac. 508, 79 Eng. Rep. 433.
'2 H. & C. 722, 159 Eng. Rep. 299 (1868).
 MARYLAND LAW REVIEW [VOL. X
beyond all doubt, afford prima facie evidence of negli-
gence." This decision was followed by others in which the
phrase was used in the same connection, and today most
jurisdictions employ the maxim in numerous similar situ-
ations.5
In Maryland, the first use of the term is to be found in
Howser v. Cumberland & P. R. R. Co.' though a case had
arisen fifteen years before in which the owner of a house
was held liable for damages arising from injuries sustained
by a traveler due to a brick falling from the defendant's
house.7 Though this earlier case bore a striking similarity
to Byrne v. Boadle,8 the Court made no mention of the
phrase, res ipsa loquitur.
In Howser v. Cumberland & P. R. R. Co.9 the plaintiff
while walking beside the defendant's railroad track was in-
jured by ties which fell from a passing freight car. In the
lower court the case was taken from the jury but on appeal
this ruling was reversed on the ground that there was a
"presumption arising out of res ipsa loquitur". Judges Mc-
Sherry and Fowler dissented on the basis that no presump-
tion of negligence could ever arise from the mere fact
that an injury has been sustained unless there existed a
contractual obligation between the defendant and plaintiff,
or unless it was a fact established by physical laws that the
injury could not have occurred without the negligence of
the defendant.
Since this leading case, there have been many Maryland
decisions in which the maxim has been invoked."° These
include actions brought for injuries resulting from contact
with a loose wire charged with electricity,1 the fall of a
dumb-waiter, 2 the fall of a brick from a building adjacent
to a highway, 8 a steel joist striking a sprinkler, 4 planks
8 See cases collected and interpreted in Prosser, Procedural Effect o
Re8 Ipsa Loquitur (1936), 20 Minn. L. R. 241.
'80 Md. 146, 30 A. 906 (1894) ; Baxter, Res Ipsa Loquitur, Daily Record,
Feb. 19, 1937.
8
Murray v. McShane, 52 Md. 217 (1879).
Supra, n. 4.
Supra, n. 6.
10For an exhaustive analysis of the types of situations to which the
maxim has been applied, see the opinion of Dennis, C. J., in the case of
Cherry v. Stewart and Co., decided in the Baltimore City Court, Daily Rec.,
March 22, 1939.
" Western Union Telegraph Co. v. Nelson, 82 Md. 293, 33 A. 763 (1896);
Walter v. Baltimore Electric Co., 109 Md. 513, 71 A. 953 (1909).
"Winkleman & Brown Drug Co. v. Colladay, 88 Md. 78, 40 A. 1078 (1898).
"Decola v. Cowan, 102 Md. 551, 62 A. 1026 (1906) ; Strasburger v. Vogel,
103 Md. 85, 63 A. 202 (1906).
1,Chesapeake Iron Works v. Hochschild, Kohn & Co., 119 Md. 303, 86
A. 345 (1913).
1949] RES IPSA LOQUITUR

falling from a pile of lumber, 5 the falling of a gate in the

defendant's fence along a highway, 16 glass found in a soft
drink,' spoiled canned meat," scantling falling from a
building in the course of construction," the fall of a coal
chute upon the plaintiff who was walking along the side-
walk,"0 the fall of stone similar to that used in the construc-
tion of defendant's building,2 ' paint solvent becoming
ignited,22 explosion of a gas filled house,2 3 falling of a meat
hook.24
To determine what constitutes a res ipsa case it may be
well to inspect its various essentials and limitations. Three
requirements have been set up as necessary for the opera-
tion of the maxim. First, the apparatus which causes the
injury must be such that in its ordinary operation no injury
is to be expected from it; second, both inspection and user
must have been at the time of the injury in the control
of the defendant; third, there may be no voluntary action
on the part of the plaintiff which might have contributed
to the injury.2 5
It has been suggested that a fourth circumstance should
be found present before the case may be properly classified
as a res ipsa case; viz., that the knowledge of the cause of
the injury shall appear more accessible to the defendant
than to the plaintiff.26 ". . . if there is direct evidence of
negligence, and all the facts causing the injury are known
and testified to by witnesses at the trial, the condition for
the inference does not exist."2 This fourth suggested re-
quirement is in effect a corollary to the second essential
stated above. It will be seen that if the agency causing
the injury were within the exclusive control of the defend-
ant then such circumstance would suggest that the defend-

'5Surry Lumber Co. v. Zissett, 150 Md. 494, 133 A. 458 (1926) ; Helm v.
Roberts, 135 Md. 600, 109 A. 329 (1920).
11Pindell v. Rubenstein, 139 Md. 567, 115 A. 859 (1921).
1"Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866
(1922) ; Salisbury Coca Cola Co. v. Lowe, 176 Md. 230, 4 A. (2d) 440 (1939).
1' Armour y. Leasure, 177 Md. 393, 9 A. (2d) 572 (1939).
1"Clough & Molloy v. Shilling, 149 Md. 189, 131 A. 343 (1925).
"State v. Emerson & Morgan Coal Co., 150 Md. 429, 133 A. 601 (1926).
11B.-L. Stores, Inc. v. Burlingame, 152 Md. 284, 136 A. 622 (1927).
0 Underwriters v. Beckley, 173 Md. 202, 195 A. 550 (1937).
" Frenkil v. Johnson, 175 Md. 592, 3 A. (2d) 479 (1939).
" Potts v. Armour & Co., 183 Md. 483, 39 A. 2d 552 (1944).
'9 WIGMORE, EVIDENCE (3d ed. 1940), Sec. 2509; Frenkll v. Johnson,
175 Md. 592, 605, 3 A. 2d 479, 484, 485 (1939), Greeley v. Balto. Transit,
180 Md. 10, 12, 22 A. 2d 460 (1941).
" Carpenter, Res Ipsa Loquitur: A Rejoinder to Prolessor Prosser (1937),
10 S. Cal. L. R. 467; 9 WIGmoRE, EVIDENCE (3d ed. 1940), Sec. 2509.
11Frenkil v. Johnson, 175 Md. 592, 605, 3 A. 2d 479, 485 (1939). Cf.,
Livingston v. Stewart & Co., 69 A. 2d 900 (1949).
340 MARYLAND LAW REVIEW [VOL. X

ant had a better knowledge of the cause; and to require

from the plaintiff affirmative proof of the negligence would,
in a typical res ipsa case, place before him an insurmount-
able obstacle.2 8 Thus the doctrine has been considered a
rule of necessity, a "rule based upon common sense applied
in the light of experience had from practical facts."29 But
the mere fact of the occurrence of the injury will not give
rise to the inference."
If the plaintiff alleges specific acts of negligence it would
seem logically to follow that by so pleading he should be
denied the benefits of the doctrine. However, the courts are
in conflict on this point.2 Though some courts adhere to
the view that by pleading specific negligence the plaintiff
is barred from the use of res ipsa, the majority of courts
take a more liberal stand and hold that by such pleading
the plaintiff is not precluded from taking advantage of the
application of the doctrine. There is an intermediate third
view which gives to the pleading of specific negligence the
modified effect of permitting the plaintiff to rely on the
doctrine but only within the 82
area delimited by his allega-
tions of specific negligence.
In Maryland the Court of Appeals, in Lawson v. Claw-
son!8 when confronted with the contention that an applica-
tion of res ipsa was precluded because the plaintiff had al-
leged specific acts of negligence stated the Maryland view
to be the converse, namely that the doctrine of res ipsa
loquitur may be applicable notwithstanding specific allega-
tions of negligence. 4
Situations where the res ipsa loquitwr doctrine may be
applied have been divided into two classes: first, carrier-
passenger relations where "the accident arises from some
abnormal condition in the department of actual transporta-
tion; second, where the injury arises from some condition
or event that is in its very nature so obviously destructive
of the safety of persons or property and is so tortious in its
Frenkil v. Johnson, 175 Md. 592, 604, 3 A. 2d 479, 484 (1939).
Cherry v. Stewart & Co., supra, n. 10.
Benedick v. Potts, 88 Md. 52, 40 A. 1067 (1898) ; Schier v. Wehner,
116 Md. 553, 82 A. 976 (1911) ; Greeley v. Balto. Transit Co., 180 Md. 10,
22 A. 2d 460 (1911) ; Bohlen v. Glenn L. Martin, 67 A. 2d 251 (1949).
"' See cases collected in 38 Am. Jur., neg. f. 305; 79 A. L. R. 48, and 160
A. L. R. 1450.
Heckel and Harper, Effect of the Doctrine of Res Ipsa Loquitur (1928),
22 Ill. L. R. 724: Prosser, Torts, (1941) §44.
' Lawson v. Clawson, 177 Md. 333, 9 A. 2d 755 (1939).
'Ibid., 340. Consider Livingston v. Stewart & Co., supra, n. 28, where no
specific acts of negligence were alleged and a demurrer to the declaration
was sustained, and affirmed on appeal. It would seem that the essentials
of a res ipsa situation were not present.
19491 RES IPSA LOQUITUR
quality as, in the first instance, at least, to permit no infer-
ence save that of negligence on the part of the person in
control of the injurious agency." 5 It is with the second
group that most of the difficulty arises, though the above
statement is to a degree stricter than that applied in most
of the res ipsa cases in Maryland.
In Frenkil v. Johnson,"' the Court with no great diffi-
culty found the situation to fall under the above rules,
stating as its interpretation of the essentials of the doctrine,
"Where the thing or artificial condition which is
the proximate and natural cause of the injury is wholly
in the possession and control of the one party or the
other, or if he has much greater opportunity to know
the facts and ability to prove them, such party is bound,
at his peril, to produce the proof of the facts which
either he alone can prove or has the much better chance
to know and power to prove . . .this rule, which is
commonly identified as res ipsa loquitur is not appli-
cable unless what inflicts the injury is shown to have
directly and naturally been the result of some act or
condition with which the defendant is connected and
which ordinarily does not happen if those who have
the management and control use proper care and dili-
gence."
Where the suggested requisites are found to be present
and the maxim is therefore applied, three theories have
been advanced regarding the result of its application. First,
where a res ipsa situation is given the effect of furnishing
"some" evidence of negligence. This is the least effect
given it and has been termed "permissible inference". This
interpretation insures the plaintiff of having his case go
to the jury unless the defendant offers sufficient rebutting
evidence to overturn the plaintiff's case. Second, where
a res ipsa case casts the burden of going forward with the
evidence on the defendant. In such a situation there is said
to arise a "presumption of negligence". If the defendant
comes forward with some explanation or rebutting evi-
dence, the case goes to the jury, but if he fails to do so,
the plaintiff is entitled to a directed verdict. Third, where
a res ipsa case shifts the burden of proof to the defendant.
This interpretation results in requiring the defendant to

Benedick v. Potts, supra, n. 30.

Frenkil v. Johnson, 175 Md. 592. C04. 3 A. (2d) 479, 484 (1939).
342 MARYLAND LAW REVIEW [VOL. X

show by a preponderance of evidence that he was not

guilty of negligence."
In tracing the use of the maxim in Maryland, there is
an apparently striking inconsistency of the Court of Ap-
peals as to the procedural effect of a res ipsa situation.
Maryland has been referred to as a jurisdiction where a
res ipsa case gives rise to some evidence of negligence and
the case goes to the jury unless this evidence is rebutted
by the defendant, i.e., a permissible inference jurisdiction
under the classification above; 8 as a jurisdiction where the
plaintiff is entitled to a directed verdict unless the defendant
introduces evidence to meet it, i.e., a presumption juris-
diction;39 and as a jurisdiction which leans toward the
theory that the burden of proof, strictly speaking, shifts
to the defendant.40
The contention that the doctrine shifts the burden of
proof has been ably criticized on the obvious ground that
the reason for the rule lies in the equalization of the parties
in respect to the proof since the plaintiff may have no means
of discovering the circumstances or cause of the accident.
Once the defendant has shown the actual facts of the acci-
dent, then both parties are on equal footing, the reason for
the presumption has disappeared, and the case should pro-
ceed as any ordinary negligence case.4 '
The one-time confusion in regard to the effect of the
doctrine of res ipsa loquitur is well illustrated by the lan-
guage of the Maryland Court of Appeals in the case of
Pindell v. Rubinstein.42 The Court said:
"the fourth prayer of the defendant which instructs
the jury that no presumption of negligence arises from
the mere happening of an accident and that the burden
was on the plaintiff to prove that it was occasioned by
the negligence of the defendants was, under the cir-
cumstances of this case, not only misleading but in-
correct, because if the plaintiff's evidence is accepted,
this is one of that class of cases in which it may be
inferred from the mere happening of an accident,
when taken in connection with the circumstances sur-
87 Prosser, ProceduralEffect of Re8 Ipsa Loquitur (1936), 20 Minn. L. R.
241, 247; Heckle and Harper, Effect of the Doctrine of Res 1p8a Loquitur
(1928), 22 Ill. L. R. 724; HAIRE, TORTS (1933), See. 77; PROSSER, TORTS
(1941) §44.
Prosser, supra, n. 37.
Prosser, supra,n. 37.
1oHeckle and Harper, supra,n. 37.
1Harper, supra, n. 37; Heckle and Harper, 8upra, n. 37; Thomsen,
supra,n. 1.
"Pindell v. Rubenstein, 139 Md. 567, 578, 115 A. 859, 863 (1921).
1949] RES IPSA LOQUITUR 343

rounding it, that it was due to a breach of some duty

on the part of the person controlling or responsible for
the agency causing it, for while it is true that in every
action for damages arising from negligence, the plain-
tiff is bound to prove the negligence and the damage
complained of as a consequence thereof yet where, as
in this case, it appears from the plaintiff's evidence
that a person lawfully in use of a public highway was
injured by the fall of an object within the exclusive
control of the defendant, which was maintained by him
in such a condition that he might reasonably have ex-
pected it to fall in the highway, just as it did in this
case, a prima facie presumption of negligence arises
from the accident itself, when taken in connection
with the circumstances under which it occurred."
Such language might be referred to as placing Maryland
under any of the three classifications. Whatever may have
been the confusion as to whether or not the burden of proof
shifted in a res ipsa case, this point, at least, is well settled
today by the case of Potomac Edison v. Johnson,43 as re-
stated by Underwriters v. Beckley, 4" in which the Court
said, "the burden of proof upon the issue of negligence
remains upon the plaintiff throughout the trial". This view
again is clearly endorsed in the more recent decisions of
Frenkil v. Johnson,43 Armour v. Leasure4 6 and Potts v.
Armour."
-8 160 Md. 33, 152 A. 633 (1930).
"173 Md. 202, 195 A.550 (1937).
-175 Md. 592, 604,3 A. (2d) 479, 484, 486 (1939).
"177 Md. 393, 411, 9 A. (2d) 572, 580 (1939).
,7183 Md. 483, 486. "The presumption raised by the rule of res ip8a loqui-
tur is one of evidence and not of substance and application of the rule does
not shift the burden of proof, but simply shifts the burden of going forward
with the evidence. When the rule is applied, the burden of the proof
remains upon the -plaintiff during the trial. When all the evidence is ill,
the question for the jury to decide is whether the plaintiff has met the
obligation to prove negligence by a preponderance of the evidence."
Note that the language of the above case characterizes the doctrine as
one of procedure rather than substance. However, such a characterization
is Inapposite for the purpose of determining the applicable law to be
applied in a federal court in a case based on diversity jurisdiction. Though
res ip8a loquitur relates to trial procedure the question of sufficiency of
the evidence may depend upon whether or not re8 ipsa loquitur is applicable
under the facts of a given case. Thus the substantive right is so exclusively
dependent upon the proof supplied by the application of the rule that the
federal court should be governed by the local rule of the state in which
It sits. (Lachman v. Pennsylvania Greyhound Lines, 160 F. 2d 496 (1947);
Slerocinskl v. P. I. DuPont de Nemours Co., 118 F. 2d 531.) To do other-
wise would violate the spirit of the Erie rule (Erie 1. R. v. Tompkins, 58
S. Ct. 817) as It has been developed by subsequent cases. For a treatment
of the extent of the Erie rule see Farinholt, Angel v. Bullington--Twiltiht
of Divcrafty Jurlsdietiont? (1947), 26 N. Car. L. R. 29.
 MARYLAND LAW REVIEW [VOL. X
However, at one period, Maryland had not so satisfac-
torily answered the question of whether there could be a di-
rected verdict for the plaintiff, or merely a "permissible
inference" where the defendant fails to rebut, when a res
ipsa case gives rise to a presumption of negligence. The
language of the Court of Appeals was equivocal in that
respect, the difficulty being to some extent one of the
ambiguous nomenclature. The phrase "prima facie case",
"burden of going forward with the evidence", "rebuttable
presumption", and "permissible inference" had been loosely
and indiscriminately used without regard to the procedural
effect of the application of the maxim. 8
In Chesapeake Iron Works v. Hochschild Kohn,49 the
Court said "the presumption of negligence arising from the
happening of the accident under the circumstances shown
in the evidence produced by the plaintiffs cast the burden
upon the defendant to show that the injury was not caused
by any want of care on its part". The language of the court
here could be taken to mean that the effect of the rule
was to raise a presumption which would entitle the plaintiff
to a directed verdict unless evidence was introduced by
the defendant to meet it.
On the other hand, in Bernheimer-Leader v. Bur-
lingame,50 the following prayer was granted and on appeal
upheld ".... the falling of said hard substance is evidence
of the negligence of the defendants unless the fall of the
same is explained by the defendants to the satisfaction of
the jury and their verdict must be for the plaintiff". Judge
Adkins, who was author of the opinion, added a note thereto
in which he stated that he thought "that the prayer as
worded might be construed to permit a recovery without
requiring the jury to find negligence", whereas this case
holds merely that where the facts proved warrant the
application of that principle, there is some evidence of negli-
gence to go to the jury.
From the above reference to two typical Maryland cases
it is apparent that if the language of the Court be taken
literally the result of the application of res ipsa loquitur in
this jurisdiction was in a confused state.
However, in all probability the Court would never have
gone to the extent of directing a verdict for the plaintiff
even though the language in some of the cases5 ' seems to
,sSupra, n. 1.
"Supra, n. 14.
Supra, n. 21.
5 See Chesapeake Iron Works v. Hochschild, Kohn & Co., 8upra,n. 14.
1949] RES IPSA LOQUITUR

infer that in a proper res ipsa case where the defendant

failed to introduce evidence in rebuttal, a directed verdict
for the plaintiff might have been granted.
It would appear that an adherence to the "permissible
inference" theory is more advisable if the "doctrine" of
res ipsa loquitur, as such, is to be given effect at all. If
the maxim be deemed to give rise to a presumption which
will entitle the plaintiff to a directed verdict unless the
defendant meets it, the substantial effect is to emasculate
the power and right of the jury to pass on the credibility
of the witnesses. Furthermore, should the jury be required
to find negligence on the defendant's part in the absence
of explanation, which the defendant may not be able to
give, the result might be clearly unjust.5 2 The suggestion
has been made that where the rule applies, a duty rests
upon the court to instruct the jury that proof which calls
the rule into action constitutes a prima facie case, or raises
a presumption of negligence. This is a misapprehension
both of the principle upon which the rule is founded and
its application. Indubitably, the plaintiff is entitled to
have a jury pass upon the physical facts and condition, and
to say whether in its opinion he has made good his allegation
of actionable negligence. The defendant may or may not
introduce evidence as it is advised. By failing to do so, it
admits nothing but simply takes the risk of "non-persua-
sion,.53
The federal courts have reached, in Sweeney v. Erving,4
the conclusion that the maxim has only the effect of a
permissible inference. The facts of the injury and its at-
tendant circumstances "warrant the inference of negli-
gence, not that they compel such an inference; that they
furnish circumstantial evidence of negligence where direct
evidence of it may be lacking, but it is evidence to be
weighed, not necessarily to be accepted as sufficient; that
they call for explanation or rebuttal not necessarily that
they require it,55 that they make a case to be decided by
the jury, not that they forestall the verdict". The Court of
Appeals of Maryland adopted
56 this language verbatim in
Potts v. Armour & Co.
Whatever may be the merits of either contention, the
present view as deduced from the more recent cases seems
Benedick v. Potts, supra, n.30.
uStewart v. Van Deventer Carpet Co., 138 N. C. 60, 50 S. E. 562 (1905).
" 228 U. S. 233, 33 Sup. Ct. 416, 57 Law. ed. 815 (1913).
51Cf. the plaintiff's 5th prayer granted by the court in Chesapeake Iron
Works v. Hochschild, Kohn & Co., supra,n. 14.
Supra, n.24, 486.
 MARYLAND LAW REVIEW [VOL. X
clearly to uphold the interpretation which gives effect to the
rise of merely a permissible inference under the rule. The
Court, in the Frenkil case, says "while such facts support
the inference of negligence (citing with approval Sweeney
v. Erving), 1 they do not compel such an inference. Before
a verdict may be rendered for the plaintiff, the facts upon
which the inference depends must be found by the jury to
be true and to be sufficient to establish the defendant's
negligence after the jury has weighed all other counter-
vailing testimony in evidence whether in denial, in rebuttal,
or in exculpation."' 5 Thus the Court of Appeals has dis-
carded its prior inconsistencies and clearly approved the
view taken in the majority of jurisdictions.
Frenkil v. Johnson,5 ' supported by Armour v. Leasure"'
and Potts v. Armour," seems to crystallize the theory
which, though previously poorly expressed in ambiguous
language, probably has existed in the mind of the Court
since the earliest res ipsa case, i.e., the "permissible infer-
ence" theory. Be that as it may, apparently the rule in
Maryland today, judging from these more recent decisions,
is that when the plaintiff presents a fact situation within
the requirements of res ipsa loquitur, the case goes to the
jury; that even though the defendant presents no explana-
tion or rebutting evidence, the plaintiff is not entitled to
a directed verdict 2 as has been suggested 3 and intimated
by the language of Chesapeake Iron Works v. Hochschild
Kohn a.3
If Maryland's position may be correctly interpreted as
being within the "permissible inference" rule, a further
question arises. What effect will be given the defendant's
evidence of freedom from negligence? In this state, the
defendant's uncontradicted evidence that he is free from
MSupra, n. 54.
Supra, n. 23.
- Supra,n. 23.
Supra, n.18.
Supra, n. 24.
Frenkil v. Johnson, 8upra, n. 23; Armour v. Leasure, supra, n. 18; See
Alexander v. Tingle, 181 Md. 464, 30 A. 2d 737 (1943), for an interpretation
of directed verdicts under Trial Rule 4, of the General Rules of Practice
and Procedure (1941).
" Prosser, supra, a. 37; Heckle and Harper, supra, n. 37. As this issue of
the Rmvmv was about to be printed, there appeared the current case of
Vogelsang v. Sehlborst, The Baltimore Daily Record, February 28, 1950
(Md. 1950), which contains at least a dictum to the effect that the lower
court might have directed a verdict for the moving party. It might seem
that this dictum is directly contra the ruling of'Alexander v. Tingle, 181
Md. 464, 30 A. 2d 737 (1943). The REVIEw plans later to publish a treatment
of the Vogelsang case.
"I Supra, n.14.
1949] RES IPSA LOQUITUR
negligence will not be deemed sufficient, in a proper res
ipsa loquitur case, to entitle him to a directed verdict. In
Heim v. Roberts, Judge Pattison, in speaking of the defend-
ant's evidence, said, "It does not explain or throw any light
on the question as to why the lumber fell, causing the in-
jury complained of, and was not, we think, in itself, suffi-
cient to prevent the inference of negligence, under the
doctrine [res ipsa loquitur]
' 64 stated, from going to the jury
to be considered by it."
As a logical implication of this statement, one could
infer that the defendant might, though he did not do so
here, offer sufficient evidence to entitle him to have the
case taken from the jury. However, the opinion in Potomac
Edison v. Johnson 5 in a strong dictum cites Heim v. Rob-
erts66 as being a "case which holds that the question of
exculpation is for the jury"."7 The opinion clearly upholds
the contention that the defendant, even though he has
offered uncontradicted testimony that he was not negligent,
is still not entitled to a directed verdict in Maryland.
It is interesting to compare the effect of the defendant's
uncontradicted testimony in a res ipsa case with its effect
where an agency relationship exists. In the latter cases,
"the rule is well established in this state that if the
vehicle causing the accident belongs to the defendant
and is being operated at the time of the accident by
one in the general employment of the defendant, there
is a presumption that at such time he was acting within
the scope of his employment and in the furtherance
of the defendant's business; but this presumption is
only prima facie and may be rebutted and overcome
by evidence to the contrary, adduced during the trial
by any parties to the suit; and where such evidence
is undisputed and uncontradicted it becomes a question
for the court."6 8
The Court in Erdman v. Horkheimer9 uses language
which clearly indicates that when the plaintiff establishes
the agency the burden is shifted to the defendant. Judge
Parke in that opinion remarked, "Should this presumption
be rebutted by the uncontradicted testimony, the case could
not be submitted to the jury."
" Supra, n. 15.
160 Md. 33, 152 A. 633 (1930).
Supra, n. 15.
Potomac Edison v. Johnson, 160 Md. 33. 36, 37, 152 A. 633, 684 (1930).
" Wells v. Hecht Bros., 155 Md. 618, 623, 624, 142 A. 258, 260 (1928). See
also Scott v. Gibbons, 64 A. 2d 117 (Md. 1949).
Erdman v. Horkheimer, 169 Md. 204, 181 A. 221 (1935).
 MARYLAND LAW REVIEW [VOL. X

Of the two views, that followed in the res ipsa cases

seems to be more justifiable. For res ipsa, then, the pre-
sumption is evidence, the defendant's rebuttal is evidence,
therefore it is a question of evidence against evidence.7"
It is within the province of the jury to pass upon the
credibility of the witnesses and to weigh the facts. The
effect of taking the case from the jury in such a situation
is to impair its right and duty to estimate the efficacy and
truth of the defendant's evidence.
Though at first the effect of the defendant's uncontra-
dicted rebutting testimony in these two types of cases
seems at variance, it is possible to distinguish between the
two in the following manner. In the agency situation, the
plaintiff sets up first, that the tortfeasor was the agent of
the defendant, second, that the instrument, causing the
injury belonged to the defendant. From this arises the
presumption that the agent was acting within the scope
of his employment. The defendant, by introducing uncon-
tradicted evidence that the agent was not acting within the
agency, destroys the presumption. The plaintiff, then, is
left with nothing more than these two established facts,
which, having no probative force concerning the scope of
employment problem, do not make out a case to go to the
jury.
In the res ipsa situation, the plaintiff sets up the essen-
tials of a res ipsa case. From these arises a presumption of
negligence on the part of the defendant. The defendant's
uncontradicted evidence, showing himself free from negli-
gence, snatches away the presumption but leaves certain
facts which have some probative value. Consequently, such
a case may not be taken from the jury as a result of the
defendant's rebuttal.
The distinction, briefly, seems to be that when the
presumption is destroyed by the defendant's uncontradicted
evidence there remains, in an agency situation, no evi-
dence of the tort being within the scope of employment;
whereas, in a res ipsa case the destruction of the pre-
sumption leaves the plaintiff with some evidence of proba-
tive value.7 '
In fine, the res ipsa presumption has more of a core
of logical probability, and merely gives added effect to
the basic probative force of the evidence raising it. Thus
it is the more plausible for the jury still to be allowed to
10Cf. statement in Armour v. Leasure, 177 Md. 393, 407. 9 A. (2d) 572 578
(1939).
7 Cf. Thomsen, supra.n. 1. 311 et seq.
1949] RES IPSA LOQUITUR

speculate, even in the face of some apparent rebuttal. On

the other hand, the agency presumption is more of the
type which gives an artificial effect to basic evidence, actu-
ally of little or no probative force, for the purpose of as-
signing the duty of producing evidence to the side having
control of what is probably the only available evidence
on the point. For this, when that duty is performed, even
by false testimony, there is no longer any justification for
reminding the jury of the presumption and, the plaintiff
having produced nothing of any real probative force, must
face a directed verdict against him for that reason.
The advisability of the use of the phrase "res ipsa
loquitur" in any manner whatsoever, may be questioned.
Chief Judge Bond, in his dissenting opinion in Potomac
Edison v. Johnson 2 expresses disapproval of the use of
the term: "Nowhere does it mean more than any colloquial
English expression that the facts speak for themselves, that
facts proved naturally afford ground for an inference of
some fact inquired about, and so amount to proof of it. The
inference may be one of certainty, as when an excessive
interest charge appeared on the face of an instrument,"
or one of more or less probability only, as when negligence
in the care of a barrel of flour was found inferable from its
fall out of a warehouse."7 4 This view apparently made some
impression, for in Combustion Engineering Co. v. Huns-
berger7 5 which is a typical res ipsa case, the court declined
to mention or apply the doctrine.
Avoidance of the use of the phrase and refusal of its
application as a doctrine would allow the circumstantial
evidence of negligence or evidence of specific acts of negli-
gence to be treated according to its own natural probative
force.76
If we thus allow the circumstances of each situation
to give rise to an inference, the strength of which is de-
pendent upon the weight of this evidence, the circum-
stances are given their natural probative effect, and then
the phrase is demoted to its proper place, that of a mere
shorthand symbol.
2 Sup ra, n. 65.
"Citing Roberts ,v. Tremayne, 1614 Cro. Jac. 508, 79 Eng. Rep. 433; Bank
of the U. S. v. Waggener, 9 Pet. 378. 399, 34 U. S. 378. 399 (1835).
1 Byrne v. Boadle, 8upra, n. 4.
75171 Md. 16, 187 A. 825 (1936). See also, Coca Cola Bottling Wks. v.
Catron, 183 Md. 156, 46 A. 2d 303 (1946), and Livingston v. Stewart & Co.,
supra,n. 28.
" Harke v. Haase. 335 Mo. 1104, 75 S. W. (2d) 1001 (19-34) ; Carpenter.,
8upra, n. 26.
 MARYLAND LAW REVIEW [VOL. X

The Court, in Singer Transfer Co. v. Buck Glass Co."'

was apparently in accord with the above contention. In
that opinion it was said,
"Where damage to property is caused by the opera-
tion of an instrument within the exclusive control of
defendant under circumstances which justify an in-
ference that it would not have occurred had defendant
exercised ordinary care, negligence may be presumed
as a rational inference from such facts. Whether that
presumption falls under the classification of the doc-
trine of res ipsa loquitur or that of the effect of circum-
stantial evidence is a mere matter of indexing, but the
principle itself is firmly established that where the
known facts justify a rational inference of defendant's
negligence, such negligence may be presumed."
Because the term has no fixed meaning in different juris-
dictions and because it gives rise to a temptation to regard
it as an end in itself instead of a convenient way of char-
acterizing the standards ordinarily requisite for the appli-
cation of a well established rule of evidence, the discon-
tinuance of the use of the phrase would probably simplify
the process of reaching a sound result. When the phrase
is so firmly embedded that its frequent use by counsel
may be expected to continue, it is a healthy sign to see the
Court, as in the Singer Transfer Co. case78 so clearly analo-
gize its character as being merely a classification under
which a given result is described or indexed.

BANK'S OBLIGATION TO PERFORM STOP PAY-

MENT ORDER RECEIVED PRIOR TO
CHARGING DEPOSITOR'S ACCOUNT
Keller v. Fredericktown Savings Institution'
Action was brought by plaintiff-appellant against the
Fredericktown Savings Institution, appellee, a bank located
at Frederick, Maryland, which paid appellant's check after
payment thereon had been stopped. On September 20,
1947, appellant drew an uncertified check on said bank
payable to the order of the Allied Realty Corp.; on receipt
the payee deposited it in the Bank of Bethesda, Bethesda,
Maryland. This check was received by appellee's treasurer
7 169 Md. 358, 181 A. 672 (1935).
78 Ibid.

' 66 A. 2d 924 Md. (1949).