Gillespie v. Chevy Chase Golf Club

[54]

SHINN, P. J.

Plaintiff was injured when a golf cart, in which he was riding on a public golf course, overturned. He brought suit against Ralph Simpson, who was driving the cart, and against Charles H. Corbett, the owner of the course, doing business as Chevy Chase Golf Club, accusing Simpson of negligence in driving the cart and Corbett of negligence in the maintenance of the course. Verdict and judgment were in favor of Simpson and against Corbett. The court, of its own motion, made an order vacating the verdict against Corbett, directing judgment in his favor, and granting him a new trial in case the order should be reversed. Plaintiff appeals from the judgment in favor of Simpson and from the order.

We shall consider first the appeal from the judgment. There was no direct evidence that Simpson was negligent. Plaintiff testified he had no criticism to make of the manner in which Simpson operated the cart. Nevertheless, as against Simpson, he relies upon the doctrine of res ipsa loquitur, which he states in his brief substantially as it was given to the jury in his instruction, namely, “First, that it was the kind of accident that did not ordinarily occur in the absence of someone’s negligence ; that it was caused by an agency or an instrumentality exclusively within the control of the defendant, and, third, that the accident was not due to any voluntary action or contribution on the part of the plaintiff. ’ ’

There was sufficient evidence to prove the existence of the first two conditions but there was also evidence that the actions of plaintiff interfered with Simpson’s handling of the cart and caused it to overturn.

The point we have for decision may be stated as follows: Plaintiff contends that although there was evidence from which the jury could have found that his own actions were the cause of the overturning of the cart, the res ipsa loquitur doctrine was applicable unless he was guilty of contributory negligence, and the fact that the jury rendered a verdict against Corbett proves that it was determined that he, plaintiff, was not guilty of contributory negligence.

Plaintiff misconceives the meaning of the third element of the doctrine, namely, that before it comes into play it must appear that the accident was not due to any voluntary action or contribution on the part of the plaintiff. Plaintiff’s interpretation would necessitate the addition of wording which would incorporate contributory negligence as an element of the res ipsa rule. The two doctrines cannot be commingled in this manner.