res ipsa loquitur doctrine in Wyoming

1956Plaintiff’s theory of the case has not embraced the doctrine of res ipsa loquitur, nor could it have under the views expressed in Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1 , 62 P.2d 1297 , and Rafferty v. Northern Utilities Company, 73 Wyo. 287 , 278 P.2d 605 .

1956Plaintiff’s theory of the case has not embraced the doctrine of res ipsa loquitur, nor could it have under the views expressed in Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1 , 62 P.2d 1297 , and Rafferty v. Northern Utilities Company, 73 Wyo. 287 , 278 P.2d 605 .

1956Plaintiff’s theory of the case has not embraced the doctrine of res ipsa loquitur, nor could it have under the views expressed in Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1 , 62 P.2d 1297 , and Rafferty v. Northern Utilities Company, 73 Wyo. 287 , 278 P.2d 605 .

1956Plaintiff’s theory of the case has not embraced the doctrine of res ipsa loquitur, nor could it have under the views expressed in Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1 , 62 P.2d 1297 , and Rafferty v. Northern Utilities Company, 73 Wyo. 287 , 278 P.2d 605 .

1997Moreover, when extensive maintenance or repair has occurred, the res ipsa loquitur claim is equally mimical to a strict liability claim because there has been a substantial change in the condition of the product and the entity maintaining or repairing that product assumes “exclusive control” by acquiring “superior means of explaining the [injurious] occurrencef.]” Id.

1979For this argument, appellants rely totally upon two cases, Connet v. Fremont County School District No. 6, Wyo.1978, 581 P.2d 1097 , and Endresen v. Allen, Wyo.1978, 574 P.2d 1219 .

1979For this argument, appellants rely totally upon two cases, Connet v. Fremont County School District No. 6, Wyo.1978, 581 P.2d 1097 , and Endresen v. Allen, Wyo.1978, 574 P.2d 1219 .

1976The inference-of-negligence argument was made in Stundon, supra, and in rejecting the res ipsa loquitur doctrine, where no causal connection is made, we quoted with approval from Ewing v. Goode, S.D.Ohio, 78 F. 442, 443 , to the following effect: “ ‘ * * * The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and unskillfulness of the treatment, nor the causal connection between it and the unfortunate event.

1976The inference-of-negligence argument was made in Stundon, supra, and in rejecting the res ipsa loquitur doctrine, where no causal connection is made, we quoted with approval from Ewing v. Goode, S.D.Ohio, 78 F. 442, 443 , to the following effect: “ ‘ * * * The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and unskillfulness of the treatment, nor the causal connection between it and the unfortunate event.

1972They cite the case of Robinson v. Nightingale, 188 Kan. 377 , 362 P.2d 432 , as “unusually analogous” to the matter before this court; however, an analysis of Robinson discloses that it is not only distinguishable but the situation was entirely dissimilar. 4 We are fully cognizant of the complexities and ramifications relating to the res ipsa loquitur doctrine and the difficulties which courts have encountered in its application or rejection, including procedural questions.

1972They cite the case of Robinson v. Nightingale, 188 Kan. 377 , 362 P.2d 432 , as “unusually analogous” to the matter before this court; however, an analysis of Robinson discloses that it is not only distinguishable but the situation was entirely dissimilar. 4 We are fully cognizant of the complexities and ramifications relating to the res ipsa loquitur doctrine and the difficulties which courts have encountered in its application or rejection, including procedural questions.

1972When specific acts of negligence are shown making a prima facie case by the plaintiff and the inference of negligence is met and overcome by the evidence on the part of the defendant the doctrine of res ipsa loquitur is not applicable. * * * » As to plaintiffs’ second charge of error, that the court failed to give an instruction covering all of the issues in the lawsuit, it is asserted to have been agreed by the parties that, on the morning of the last day of the trial, counsel and court would consider an “issues instruction.” However, plaintiffs now state that the next morning while their cou

1961Plaintiff points to jurisdictions where it has been held that the presence on the highway of an animal constitutes the owner’s negligence per se or that the doctrine of res ipsa loquitur applies; Annotation 59 A.L.R.2d 1328 , 1343, 1351; Corey v. Smith, 233 Ind. 452 , 120 N.E.2d 410 .

1961Plaintiff points to jurisdictions where it has been held that the presence on the highway of an animal constitutes the owner’s negligence per se or that the doctrine of res ipsa loquitur applies; Annotation 59 A.L.R.2d 1328 , 1343, 1351; Corey v. Smith, 233 Ind. 452 , 120 N.E.2d 410 .

1955We feel, however, that the Utah case is unfavorable to the appellant under the evidence here, for it quotes with evident approval from Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405 , 158 S.W.2d 721, 725 , 171 A.L.R. 1200 , where, after discussing and pointing out circumstances of constructive control, it is said “ ‘the facts clearly justify the application of the res ipsa loquitur doctrine’ ”, and concludes “ ‘ * * * We have here a distinctive element of fact which breaks the conclusive continuity of control between the bottler and the consumer, when the physical possession has been in a

1955We feel, however, that the Utah case is unfavorable to the appellant under the evidence here, for it quotes with evident approval from Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405 , 158 S.W.2d 721, 725 , 171 A.L.R. 1200 , where, after discussing and pointing out circumstances of constructive control, it is said “ ‘the facts clearly justify the application of the res ipsa loquitur doctrine’ ”, and concludes “ ‘ * * * We have here a distinctive element of fact which breaks the conclusive continuity of control between the bottler and the consumer, when the physical possession has been in a

1955In furtherance of its argument that the fire might possibly have been caused by some other instrumentality than the heater, the appellant represents that in every case examined involving the doctrine of res ipsa loquitur, “the thing” or “instrumentality” which caused the injury was not in dispute and appellant incompletely states that this court in York v. No. Central Gas, 69 Wyo. 98, 118 , 237 P.2d 845, 851 , cited cases with approval to the effect that the “thing” which caused the harm must not be in dispute.

1955In furtherance of its argument that the fire might possibly have been caused by some other instrumentality than the heater, the appellant represents that in every case examined involving the doctrine of res ipsa loquitur, “the thing” or “instrumentality” which caused the injury was not in dispute and appellant incompletely states that this court in York v. No. Central Gas, 69 Wyo. 98, 118 , 237 P.2d 845, 851 , cited cases with approval to the effect that the “thing” which caused the harm must not be in dispute.

1936Super.) 180 Atl. 522 ; Speidel v. Lacer, 2 Cal. App. (2d) 528, 38 Pac. (2d) 477 ; Schiesel v. S. Z.

1936Super.) 180 Atl. 522 ; Speidel v. Lacer, 2 Cal. App. (2d) 528, 38 Pac. (2d) 477 ; Schiesel v. S. Z.

1936Coca-Cola Bottling Co. v. Rowland, 16 Tenn. App. 184 , 66 S. W. (2d) 272 ; Yates v. Coca-Cola Bottling Works, supra ( 14 Tenn. App. 7, 10 ) ; Lewis v. Casenburg, 157 Tenn. 187 , 7 S. W. (2d) 808 , 60 A. L.

1936Where damages for personal injuries, were sought by the plaintiff when a bottle of Coca-Cola bottled by the defendant company and sold to plaintiff’s employer exploded, throwing a piece of glass into plaintiff’s eye, in Winfree v. Coca-Cola Bottling Works of Lebanon, 19 Tenn. App. 144 , 83 S. W. (2d) 903 , the court declared that: “The doctrine of res ipsa loquitur applies only when the instrumentality is wholly within the possession of the defendant and under its control and management at the time of the casualty.

1936Where damages for personal injuries, were sought by the plaintiff when a bottle of Coca-Cola bottled by the defendant company and sold to plaintiff’s employer exploded, throwing a piece of glass into plaintiff’s eye, in Winfree v. Coca-Cola Bottling Works of Lebanon, 19 Tenn. App. 144 , 83 S. W. (2d) 903 , the court declared that: “The doctrine of res ipsa loquitur applies only when the instrumentality is wholly within the possession of the defendant and under its control and management at the time of the casualty.

1936Coca-Cola Bottling Co. v. Rowland, 16 Tenn. App. 184 , 66 S. W. (2d) 272 ; Yates v. Coca-Cola Bottling Works, supra ( 14 Tenn. App. 7, 10 ) ; Lewis v. Casenburg, 157 Tenn. 187 , 7 S. W. (2d) 808 , 60 A. L.

1936Coca-Cola Bottling Co. v. Rowland, 16 Tenn. App. 184 , 66 S. W. (2d) 272 ; Yates v. Coca-Cola Bottling Works, supra ( 14 Tenn. App. 7, 10 ) ; Lewis v. Casenburg, 157 Tenn. 187 , 7 S. W. (2d) 808 , 60 A. L.

1936Coca-Cola Bottling Co. v. Rowland, 16 Tenn. App. 184 , 66 S. W. (2d) 272 ; Yates v. Coca-Cola Bottling Works, supra ( 14 Tenn. App. 7, 10 ) ; Lewis v. Casenburg, 157 Tenn. 187 , 7 S. W. (2d) 808 , 60 A. L.

1936Coca-Cola Bottling Co. v. Rowland, 16 Tenn. App. 184 , 66 S. W. (2d) 272 ; Yates v. Coca-Cola Bottling Works, supra ( 14 Tenn. App. 7, 10 ) ; Lewis v. Casenburg, 157 Tenn. 187 , 7 S. W. (2d) 808 , 60 A. L.

1936Carroll v. Boston Elevated Railway Co., 200 Mass. 527, 536 , 86 N. E. 793 ; Gilcrist v. Boston Elevated Railway Co., 272 Mass. 346, 351, 352 , 172 N. E. 349 .

1936Carroll v. Boston Elevated Railway Co., 200 Mass. 527, 536 , 86 N. E. 793 ; Gilcrist v. Boston Elevated Railway Co., 272 Mass. 346, 351, 352 , 172 N. E. 349 .

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1936Stangy v. Boston Elevated *31 Railway Co., 220 Mass. 414, 416 , 107 N. E. 933 ; Reardon v. Boston Elevated Railway Co., 247 Mass. 124, 126 , 141 N. E. 857 ; Di Leo v. Eastern Massachusetts Street Railway, 255 Mass. 140, 143 , 150 N. E. 891 .” In Olson v. Whitthorne & Swan, 203 Cal. 206 , 263 Pac. 518 , the res ipsa loquitur principle was held inapplicable where the plaintiff was struck by the rebound of one swinging door of defendant’s store while she held the other door open for a lady immediately following her, these doors being of standard construction and equipped with spring checking devi

1927R. 881: “The law is not so exacting as to require every fact and circumstance going to make up a case of negligence, or to identify the proximate cause, to be proved by eyewitnesses, or positive, direct testimony.” *518 And in Rocha v. Payne, 108 (Nebr.) 246, 187 N. W. 804 , the distinction between mere circumstantial proof and the res ipsa loquitur rule seems to be stated in disposing of the question of negligence upon the facts in that case, a personal injury case by a railroad employee against the Director-General of Railroads: “The doctrine of res ipsa loquitur is frequently applied to cas