res ipsa loquitur doctrine in Virginia

1938After it had introduced evidence from which the jury could find that it had used due care in the construction, equipment and maintenance of the railway, the burden of proof had not been shifted, but still remained upon the plaintiff to establish the defendant’s negligence upon all the evidence of which the presumption or inference of negligence upon proof of the derailment and injury formed only a part.” Again the question was reviewed in the case of Hines v. Beard, 130 Va. 286 , 107 S. E. 717, 719 , where Judge Burks, speaking of res ipsa loquitur as applied to the injuries of passengers by c

1938After it had introduced evidence from which the jury could find that it had used due care in the construction, equipment and maintenance of the railway, the burden of proof had not been shifted, but still remained upon the plaintiff to establish the defendant’s negligence upon all the evidence of which the presumption or inference of negligence upon proof of the derailment and injury formed only a part.” Again the question was reviewed in the case of Hines v. Beard, 130 Va. 286 , 107 S. E. 717, 719 , where Judge Burks, speaking of res ipsa loquitur as applied to the injuries of passengers by c

1925“The doctrine of res ipsa loquitur can have no application where the accident is due to a defective appliance under the management of the plaintiff, nor to a case involving divided responsibility, where an unexplained accident may have been attributed to one of •several causes, for some of which defendant is not responsible.” Peters v. Traction Company, 108 Va. 333 , 61 S. E. 745 , 22 L.

1925“The doctrine of res ipsa loquitur can have no application where the accident is due to a defective appliance under the management of the plaintiff, nor to a case involving divided responsibility, where an unexplained accident may have been attributed to one of •several causes, for some of which defendant is not responsible.” Peters v. Traction Company, 108 Va. 333 , 61 S. E. 745 , 22 L.

1990Finally, to further distinguish this case from Andrews v. Appalachian Electric Power Co., 192 Va. 150 (1951), relied upon by the plaintiffs, and other cases in which the doctrine of res ipsa loquitur has been applied, it is significant that those situations involved occurrences or happenings, whereas the case at bar involved a condition, or status, which endured for some part of fourteen years between installation of the new service line and the snapping of the attic stud which secured the eye bolt.

1990Cooper v. Whiting Oil Co., 226 Va. 491 (1984).

1989The record in that case shows that the stove “was never subjected to an examination by any expert”, id. at 428 , 219 S.E.2d at 687 , and that the purchaser, invoking the doctrine of res ipsa loquitur, had relied upon the occurrence of the explosion to *28 prove the existence of a defect at the time of purchase.

1989The record in that case shows that the stove “was never subjected to an examination by any expert”, id. at 428 , 219 S.E.2d at 687 , and that the purchaser, invoking the doctrine of res ipsa loquitur, had relied upon the occurrence of the explosion to *28 prove the existence of a defect at the time of purchase.

1989In Stein v. Powell, 203 Va. 423 , 124 S.E.2d 889 (1962), the Supreme Court of Virginia held that in order for the doctrine of res ipsa loquitur to apply in a given case: 1.

1989In Stein v. Powell, 203 Va. 423 , 124 S.E.2d 889 (1962), the Supreme Court of Virginia held that in order for the doctrine of res ipsa loquitur to apply in a given case: 1.

1988Instead, the doctrine is an "evidential presumption," Darden v. Murphy, 176 Va. 511 , 11 S.E.2d 579 (1900), applicable to very limited circumstances as a way to prove negligence.

1988Instead, the doctrine is an "evidential presumption," Darden v. Murphy, 176 Va. 511 , 11 S.E.2d 579 (1900), applicable to very limited circumstances as a way to prove negligence.

1977There we expressly rejected the doctrine of res ipsa loquitur as applying to swimming pools and held that: "Lifeguards are to aid those in distress, and unless there is some cause to believe that one is in distress they cannot be expected to act...." 205 Va. at 651 , 139 S.E.2d at 51 .

1977There we expressly rejected the doctrine of res ipsa loquitur as applying to swimming pools and held that: "Lifeguards are to aid those in distress, and unless there is some cause to believe that one is in distress they cannot be expected to act...." 205 Va. at 651 , 139 S.E.2d at 51 .

1967Hunter v. Burroughs, 123 Va. 113, 136 , 96 S. E. 360, 366 (1918); Fox v. Mason, 139 Va. 667, 670 , 124 S.E. 405, 406 (1924); Henley v. Mason, 154 Va. 381, 383-384 , 153 S. E. 653 (1930); United Dentists v. Bryan, 158 Va. 880, 884 , 164 S. E. 554, 556 (1932); Alexander v. Hill, 174 Va. 248, 252 , 6 S. E. 2d 661, 663 (1940); Reed v. Church, 175 Va. 284, 298 , 8 S. E. 2d 285, 288 (1940). [3] The precise question of whether the res ipsa loquitur doctrine is applicable in cases where a foreign object, such as forceps or a surgical pad or sponge, has been inadvertently left in the body of a patient

1967Hunter v. Burroughs, 123 Va. 113, 136 , 96 S. E. 360, 366 (1918); Fox v. Mason, 139 Va. 667, 670 , 124 S.E. 405, 406 (1924); Henley v. Mason, 154 Va. 381, 383-384 , 153 S. E. 653 (1930); United Dentists v. Bryan, 158 Va. 880, 884 , 164 S. E. 554, 556 (1932); Alexander v. Hill, 174 Va. 248, 252 , 6 S. E. 2d 661, 663 (1940); Reed v. Church, 175 Va. 284, 298 , 8 S. E. 2d 285, 288 (1940). [3] The precise question of whether the res ipsa loquitur doctrine is applicable in cases where a foreign object, such as forceps or a surgical pad or sponge, has been inadvertently left in the body of a patient

1966Arnold v. Wood, 173 Va. 18, 25 , 3 S.E.2d 374, 376 .

1966Arnold v. Wood, 173 Va. 18, 25 , 3 S.E.2d 374, 376 .

1961Foley Pittsburgh-Des Moines Co., 363 Pa. 1 , 68 A.2d 517 ;" Lott Peoples Natural Gas Co., 324 Pa. 517 , 188 A. 582, 585 ."" See also 38 Am.

1961Foley Pittsburgh-Des Moines Co., 363 Pa. 1 , 68 A.2d 517 ;" Lott Peoples Natural Gas Co., 324 Pa. 517 , 188 A. 582, 585 ."" See also 38 Am.

1961Foley Pittsburgh-Des Moines Co., 363 Pa. 1 , 68 A.2d 517 ;" Lott Peoples Natural Gas Co., 324 Pa. 517 , 188 A. 582, 585 ."" See also 38 Am.

1961Foley Pittsburgh-Des Moines Co., 363 Pa. 1 , 68 A.2d 517 ;" Lott Peoples Natural Gas Co., 324 Pa. 517 , 188 A. 582, 585 ."" See also 38 Am.

1961The case of Cohen Penn Fruit Co., 192 Pa. Superior Ct. 244, 250, 251 , 159 A.2d 558, 561 , reviews the New Jersey doctrine, and in a review of the case of Francois American Stores Co., 46 N.J.Super. 394 , 134 A.2d 799 , it is said: "The New Jersey courts applied the doctrine of res ipsa loquitur, which has been repeatedly rejected by Pennsylvania in this type of situation." The opinion in the Cohen case, continuing, says: "In the instant case the appellant claims the can fell from a completely different and disconnected stack from the one from which she had selected her purchase." "Because the

1961The case of Cohen Penn Fruit Co., 192 Pa. Superior Ct. 244, 250, 251 , 159 A.2d 558, 561 , reviews the New Jersey doctrine, and in a review of the case of Francois American Stores Co., 46 N.J.Super. 394 , 134 A.2d 799 , it is said: "The New Jersey courts applied the doctrine of res ipsa loquitur, which has been repeatedly rejected by Pennsylvania in this type of situation." The opinion in the Cohen case, continuing, says: "In the instant case the appellant claims the can fell from a completely different and disconnected stack from the one from which she had selected her purchase." "Because the

1961R. 280).” For a further discussion of the doctrine of res ipsa loquitur, see Riggsby v. Tritton, 143 Va. 903 , 129 S. E. 493 , and 38 Am.

1961R. 280).” For a further discussion of the doctrine of res ipsa loquitur, see Riggsby v. Tritton, 143 Va. 903 , 129 S. E. 493 , and 38 Am.

1951In Stephens v. Virginia Elec., etc., Co., 184 Va. 94 , 34 S. E. (2d) 374 , relied upon by the defendant, we held that the clear and uncontradicted evidence adduced by the defendant had overcome or dissipated the presumption of negligence. *159 The plaintiff argnes that the jury would also have been warranted in finding that the defendant company was negligent in failing to have the energized wire which caused the death of the decedent properly insulated, and in not keeping such insulation in good condition.

1951In Stephens v. Virginia Elec., etc., Co., 184 Va. 94 , 34 S. E. (2d) 374 , relied upon by the defendant, we held that the clear and uncontradicted evidence adduced by the defendant had overcome or dissipated the presumption of negligence. *159 The plaintiff argnes that the jury would also have been warranted in finding that the defendant company was negligent in failing to have the energized wire which caused the death of the decedent properly insulated, and in not keeping such insulation in good condition.

1947As said in George Foltis, Inc. v. New York, supra, “ ‘the doctrine of res ipsa loquitur is not an arbitrary rule.

1939Va. 648 , 64 S. E. 523 .’ Hutcheson v. Savings Bank, 129 Va. 281 , 105 S. E. 677, 680 .” Neither is there any merit in the contention of. the administratrix that the doctrine of res ipsa loquitur applies.

1939Va. 648 , 64 S. E. 523 .’ Hutcheson v. Savings Bank, 129 Va. 281 , 105 S. E. 677, 680 .” Neither is there any merit in the contention of. the administratrix that the doctrine of res ipsa loquitur applies.

1939Va. 648 , 64 S. E. 523 .’ Hutcheson v. Savings Bank, 129 Va. 281 , 105 S. E. 677, 680 .” Neither is there any merit in the contention of. the administratrix that the doctrine of res ipsa loquitur applies.

1938But if, by burden of proof, we mean the necessity which always rests upon a plaintiff to prove his case, then it never shifts.” The question was again before the court in Virginia Elec. & Power Co. v. Lowry, 166 Va. 207 , at page 217, 184 S. E. 177 ; after a rather extended discussion of the prior Virginia decisions, this is said: “We have discussed these two cases,” (the Tomlinson Case and the Beard Case), “at length for two reasons: (1) Because they overrule previous decisions of this court on the question of the burden of proof in the sense of the risk of non-persuasion, and (2) Because the

1938But if, by burden of proof, we mean the necessity which always rests upon a plaintiff to prove his case, then it never shifts.” The question was again before the court in Virginia Elec. & Power Co. v. Lowry, 166 Va. 207 , at page 217, 184 S. E. 177 ; after a rather extended discussion of the prior Virginia decisions, this is said: “We have discussed these two cases,” (the Tomlinson Case and the Beard Case), “at length for two reasons: (1) Because they overrule previous decisions of this court on the question of the burden of proof in the sense of the risk of non-persuasion, and (2) Because the

1937Duke v. Luck, 150 Va. 406 , 143 S. E. 692 .

1937Duke v. Luck, 150 Va. 406 , 143 S. E. 692 .

1934Liggett & Myers Tobacco Co. v. Rankin, 246 Ky. 65 , 54 S. W. (2d) 612 ; Atlanta Coca-Cola Bottling Co. v. Sinyard, 45 Ga. App. 272 , 164 S. E. 231 ; Costello v. Cafeteria Co. (1931) 18 La. App. 40 , 135 So. 245 .

1934Liggett & Myers Tobacco Co. v. Rankin, 246 Ky. 65 , 54 S. W. (2d) 612 ; Atlanta Coca-Cola Bottling Co. v. Sinyard, 45 Ga. App. 272 , 164 S. E. 231 ; Costello v. Cafeteria Co. (1931) 18 La. App. 40 , 135 So. 245 .