Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal from a judgment in favor of plaintiffs, following a jury verdict allowing $12,000 to the female plaintiff for her personal injuries and $2,500 in favor of her husband, per quod.
The female plaintiff was a passenger in defendant's taxicab, operated by its agent, Collins. As the cab was turning left from Mechanic Street into 7th Street in Camden, something happened to the left front wheel, causing the cab to come to an abrupt stop. The female plaintiff, who had been sitting in the rear of the taxi, was subjected to a violent jolt. She hit her head on the ceiling of the vehicle and injured her back and left shoulder. Examination of the cab at the scene revealed that the left front wheel was tilted at a 30 to 45 degree angle, with the top pointed in toward the cab and the bottom extended outwards.
Plaintiffs' negligence action was rested on the doctrine of res ipsa loquitur. That this procedural rule of evidence was appropriate here seems clear, since the facts brought the case within the requirements of the rule, as set forth in Kahalili v. Rosecliff Realty, Inc. , 26 N.J. 595, 606 (1958). Those requirements are: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect."
Defendant's contention that the taxicab was not in its exclusive control is without merit. It relies upon such cases as Glicken v. Bergman , 117 N.J.L. 306 (E. & A. 1936), but they are clearly distinguishable. In the Glicken case, the injury was sustained when defendant's vehicle passed over a "bump" in the road. Plaintiff could have ascertained the
nature of that bump, as readily as could the defendant. The bump was outside the vehicle and thus not within defendant's exclusive control. Here, the alleged negligence is insufficient or improper maintenance and inspection of the cab, matters within the exclusive control of the defendant. Hughes v. Atlantic City & S.R. Co. , 85 N.J.L. 212 (E. & A. 1914).
While accidents caused by the mere blowout of a tire are generally held to be outside the rule of res ipsa loquitur , see Annotation , 24 A.L.R. 161, 163 (1952), since reasonably prudent persons experience tire blowouts, courts have not hesitated to invoke the doctrine in cases of accidents resulting from defective or detached wheels. In Gates v. Crane Co. , 107 Conn. 201, 139 A. 782 (Sup. Ct. Err. 1928), the doctrine was applied when plaintiff, a pedestrian, was struck by a wheel which suddenly became detached from an automobile and rolled on the sidewalk. In Fenstermacher v. Johnson , 138 Cal. App. 691, 32 P. 2 d 1106 (Ct. App. 1934), res ipsa loquitur was applied to facts showing plaintiff, a passenger in defendant's automobile, was injured when the car overturned due to the buckling or collapsing of the wheel or the frame. See in our own State, Rapp v. Butler-Newark Bus Line, Inc. , 103 N.J.L. 512 (Sup. Ct. 1927), and Mumma v. Easton & Amboy R.R. Co. , 73 N.J.L. 653 (E. & A. 1905).
When the doctrine of res ipsa loquitur is invoked, it does not create any presumption of negligence against the defendant. It merely enables the plaintiff to avoid a dismissal for failure to prove negligence specifically, and permits the jury to draw an inference of negligence, which it may, as trier of facts, draw or not draw. The burden of proving the defendant's negligence still remains with the plaintiff, so that invocation of the res ipa loquitur doctrine does not shift the burden to the defendant of showing that the accident happened without his fault. In practical effect, there is cast upon the defendant the burden of going forward with some explanation to offset the inference of negligence which the jury might more readily draw without such an explanation.
The trial judge charged the jury fully and correctly as to the meaning and effect of this procedural doctrine, but also made the following charge requested by the plaintiffs:
"It is a matter of common knowledge that a taxicab when run with due care and kept in proper condition will carry its passengers safely; and when the plaintiff, being a passenger, has proved the reception of injuries through the happening of an accident which would not have occurred except by the operation of abnormal causes , the onus then rests upon the defendant to prove that the injuries were caused without his fault." (Emphasis supplied)
That quotation was borrowed almost verbatim from Rapp v. Butler-Newark Bus Line, Inc., supra , 103 N.J.L. , at page 515. Insofar as it implies that the " onus probandi ," or burden of proof is shifted to the defendant to prove that the injuries were caused without his fault, it is an erroneous statement of the rule in a res ipsa loquitur case. As pointed out in Bornstein v. Metropolitan Bottling Co. , 26 N.J. 263 (1958), it is now beyond question in this State that this doctrine does not shift the ultimate burden of proof or persuasion, and ...