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Alston v. J.L. Prescott Co.

Decided: November 10, 1950.


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.


This appeal implicates a judgment entered in the Superior Court, Law Division, upon the verdict of a jury in favor of the plaintiff with an award of $1,500 damages.

The factual circumstances of the mishap out of which the litigation arose may be summarized. The plaintiff was a domestic servant in the employ of Mr. and Mrs. Abramson at their residence in Bayonne. On September 4, 1947. Mrs. Abramson by means of a telephone communication purchased

from a neighborhood grocer some quart bottles of a laundry fluid manufactured and bottled by the defendant and distributed for sale under the trade name "Dazzle." Upon the copious label which surrounds the bottle and which itself is somewhat "dazzling" appears the admonition "Keep in a Cool Place." The liquid was in the present instance confined in the bottle by the defendant by means of a rubber stopper.

The bottles were accordingly delivered by the employee of the grocer to the Abramson residence and promptly placed in a closet situate in the cellar of the residence. The following day, September 5, 1947, the plaintiff was requested by Mrs. Abramson to bleach some articles, and in undertaking that pursuit she removed a bottle of "Dazzle" from the shelf of the closet and had no more than started to dislodge the rubber stopper when it was suddenly expelled by internal pressure from the top of the bottle, instantly followed by the ejection of a large portion of the liquid contents of the bottle, some of which entered the plaintiff's eyes. The glass bottle itself was not fractured.

It was voluntarily divulged at the trial that at some time indefinitely stated in the record, but perhaps immediately subsequent to the occurrence of the mishap, the defendant substituted metal caps with air vents on its bottles in place of the rubber stoppers.

It is asserted by the appellant that the denials of the motions for a dismissal of the action and for a judgment for the defendant were erroneous.

It is evident that, at the trial, the plaintiff sought to utilize the aid of the doctrine or rule of res ipsa loquitur. The application of the so-called doctrinal function of that rule of evidence to the circumstances of the present case is the predominant controversial issue of this appeal.

The legal concept which many centuries ago assumed the name res ipsa loquitur and which Professor Wigmore has chosen to distinguish in our law of evidence as "Antopic Proference" has been the subject of countless pages of diagnostic and discriminative comment.

Whether it is to be regarded as a doctrine, a principle, a maxim indicative of proof by circumstantial evidence, a rule of substantive or adjective law, a presumption of negligence or merely a prima facie inference are some of the characteristics concerning which a conspicuous diversity of opinion is discoverable in the English and American cases and among the competent contributors to the law reviews.

Let the inquisitive consult: Professor Prosser's " Res Ipsa Loquitur ," 10 So. Cal. L. Rev. 459 (1937), in reply to Professor Carpenter's article in 10 So. Cal. L. Rev. 166 (1937); Kocourek's "Substance and Procedure," 10 Fordham L. Rev. 157 (1941); Morgan, "Presumptions," 12 Wash. L. Rev. 255, 279 (1937); Reaugh, "Presumptions and the Burden of Proof," 36 Ill. L. Rev. 703, 824 (1942); Bohlen, "The Effect of Rebuttable Presumptions of Law Upon Burden of Proof," 68 Univ. Pa. L. Rev. 307 et seq. (1920); Thayer, "Presumptions and the Law of Evidence," 3 Harv. L. Rev. 141 (1889); Shain's work on Res Ipsa Loquitur (1945); the opinion of Justice Erle in Scott v. The London, &c., Docks Co. , 159 Eng. Rep. 665 (1865), and the opinion of Justice Pitney in Sweeney v. Erving , 228 U.S. 233, 33 S. Ct. 416, 57 L. Ed. 815 (1913); Professor Prosser's article in 20 Minn. L. Rev. 271 (1936); Wigmore on Evidence (3 rd Ed. 1940) 377, ยง 2509; and Hughes v. Atlantic City, &c., R.R. Co. , 85 N.J.L. 212, 89 A. 769 (E. & A. 1914).

But in the consideration of the present case, we must return home and abide by or distinguish the decisions of our own jurisdiction.

Our courts have uniformly said: "This principle is that when through any instrumentality or agency under the management or control of a defendant or his servants there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care." Mumma v. Easton and Amboy R.R. Co. , 73 N.J.L. 653, 65 A. 208 (E. & A. 1906).

A reading of the relatively recent decisions in this as well as in other jurisdictions discloses that the controversial issues have not arisen so often from a misunderstanding of the rule of evidence (such our own courts regard it to be), as from the problematical application of the rule to the borderline circumstances of the given case.

The progressive technological developments in modern times are introducing many new devices and operational methods which were unknown to past generations, thus broadening the field to which the applicability of the so-called doctrine is to be determined. It has been pointed out in the consideration of res ipsa loquitur that in addition to the fact of the accident and the surrounding circumstances, the tribunal has before it a great body of additional matter in the shape of common knowledge and ...

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