Jayne, Francis and Proctor. The opinion of the court was delivered by Jayne, S.j.a.d.
[29 NJSuper Page 198] The application of the so-called doctrinal function of res ipsa loquitur to the factual circumstances disclosed by the evidence adduced in the present case is the controversial subject predominating in the consideration of the present appeal. We ventured the comment in Alston v. J.L. Prescott Co. , 10 N.J. Super. 116, on page 119 (App. Div. 1950), that whether the concept which many centuries ago assumed the name res ipsa loquitur 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. A column of illustrative articles was supplied.
However, the concept of it which we recognize in this jurisdiction 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 have taken 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 (E. & A. 1906); Cicero v. Nelson Transportation Co., Inc. , 129 N.J.L. 493 (Sup. Ct. 1943); Hansen v. Eagle-Picher Lead Co. , 8 N.J. 133 (1951).
An acquaintance with the progression of decisions in this as well as other jurisdictions reveals that the dissimilarity of the decisions relating to the subject have not arisen so often from discordant understandings of the rule or principle as from the occasional problematical application of it to the peculiar and perhaps neoteric occurrences of the particular case. Enlargement or modification of application implies the growth and life of the law. It is immediately to be realized that proof of several elements reaching beyond that of the mere occurrence of a mishap is required to set the rule in operation.
The principal tests of its application are: (1) was the injurious occurrence in its characteristics and accompanying circumstances one which would not normally happen in the absence of some neglect; (2) is the injurious event in the absence of an explanation of a faultless and inculpable cause one logically to be attributable to carelessness; (3) was the instrumentality actually or constructively under the management or control of the defendant at the time of the happening of the mishap; (4) in some instances was the injured plaintiff expressly or impliedly invited by the defendant to use the instrumentality or rely upon or assume its apparently
safe and harmless condition; and (5) was the inferentially negligent occurrence the proximate cause of the injurious consequences incurred by or visited upon the plaintiff? Those tersely expressed criteria are useful inquisitorial avenues to explore in ascertaining the adaptation of the rule to the factual constituents of the case.
We now reveal the nature of the harmful experience encountered by the plaintiff Ella Van Staveren during the noon hour on March 7, 1951. The defendant, F.W. Woolworth Company, maintains one of its chain stores at No. 300 Wood Avenue in the City of Linden, Union County, in which it conducts a counter for the sale of light lunches and refreshments. Sixteen immovable swivel stools with back rests were conveniently located along the counter for the use of the patrons. At the time previously mentioned Mrs. Van Staveren entered the store to obtain a cup of coffee. The stool nearest the entrance door was unoccupied. She seated herself upon it and in relaxing leaned backward against the back rest when instantaneously the seat became disengaged from the supporting leg or pedestal, thereby overthrowing Mrs. Van Staveren to the floor.
In the present action in which Mrs. Van Staveren sought the recovery of compensatory damages for her bodily injuries and their injurious consequences, and in which her husband asserted a derivative claim for his losses, these plaintiffs invoked the rationale of the rule of res ipsa loquitur.
We may immediately state that we have no doubt of the applicability of the rule to the import of the evidence as it existed at the conclusion of the plaintiffs' case. The motion for an involuntary dismissal of the action was properly denied. Zappala v. Stanley Company of America , 124 N.J.L. 569 (E. & A. 1940). Cf. Cicero v. Nelson Transportation Co., Inc., supra.
This is a civil action and we concentrate our attention upon the state of all of the evidence at the conclusion of its introduction. Beck v. Monmouth Lumber Co. , 137 N.J.L. 268 (E. & A. 1948); Parrette v. Citizens ...