Katherine Simmons v. City Stores Company

I respectfully dissent. As I perceive the holding of the majority, it is that the doctrine of res ipsa loquitur should have carried plaintiff-appellant to the jury. I cannot agree. The case of Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231 (1950), cited by the majority on the Alabama res ipsa loquitur standard is inapposite. One of the essential elements is that “the injury is such as, in the ordinary course of things, does not occur if the one having such control- uses proper care.” Alabama Power, supra, 48 So.2d at 238. See also Prosser, Torts, 218. This element was present in…