Notes and Comments:

1.Why would it be necessary,as the court states,that the fact that there was no evidence whatsoever on the part of defendant,as a condition for the doctrine of res ipsa loquitur to be employed.What if the defendant could show that none of the servants or himself was present in the warehouse and nothing was wrong with the jigger-hoist mechanism that held the barrels in place? What could be a situation where the plaintiff would still be required that evidence be presented for establishing negligence under the rule given in Byrne?

2.Res Ipsa Loquitur.“The thing speaks for itself.” This is an old phrase,found in Cicero and other ancient writers;and it has been used from time to time in other connections in the law.Chief Baron Pollock was an English gentleman,with a classical education,as was counsel to whom he spoke.Just what did he mean by it? This question has been put in Latin: Res ipsa loquitur,sed quid in infernos dicet?[“The thing itself speaks,but what in the hell did it say?]There has been considerable denunciation of the use of the phrase in negligence cases.See,e.g.,Bond C.J.(dissenting in Potomac Edison Co.v.Johnson,160 Md.33 (1930)): “It adds nothing to the law,has no meaning which is not more clearly expressed for us in English,and brings confusion to our legal discussions.It does not represent a doctrine,is not a legal maxim,and is not a rule.” Also Lord Shaw commented,in Ballard v.North British R.Co.,(1923) Sess.Cas.H.L.43,56: “If that phrase had not been in Latin,nobody would have called it a principle.”

Sir Jonathan Frederick Pollock (1783～1870),Lord Chief Baron of the Exchequer

3.The first attempt to state the rule of Byrne v.Boadle was that of Chief Justice Erle in Scott v.London & St.Katherine Docks Co.,(1865): “There must be reasonable evidence of negligence;but where the thing is shown to be under the management of the defendant or his servants,and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care,it affords reasonable evidence,in the absence of explanation by the defendants,that the accident arose from want of care.” These remain the two core requirements of the doctrine,although you will sometimes see a third requirement listed in opinions.

4.Pay attention to the difference between res ipsa loquitur and the socalled “principle” of shifted burden of proof.When a claimant (the plaintiff)carries his burden of proof by adducing evidence in court,it will now be the turn for the other party (the defendant) to counterargue by offering his evidence in rebuttal,and the burden is shifted to him.If he has strong evidence to show that plaintiff’s evidence must fail,then the burden is shifted back to the plaintiff,until finally a most convincing evidence is presented.For example,in a criminal case involving murder with a bloody knife,the prosecution says to defendant,“Your name is inscribed on the knife,so the knife must belong to you,and none other;therefore,you must be the perpetrator.” The defendan t may argue that he is a maker of knives all of which carry his name,and the prosecution fails to prove that this particular knife is owned or used by defendant in the murder.The prosecution may go further in this case by arguing on the blood stain or fingerprints on the knife,and so on.A recent development on the subject of proving a case calls for a “reversed burden of proof” which,stated briefly,says in certain cases (such as tort and even beyond) it is so difficult for a plaintiff to gather evidence that is necessary to assign the initial burden of proof to the defendant.In other words,“When I say you are wrong,I don’t need to say why and how you are wrong;you must say why and how you are not wrong.” And it is called by some as a “principle.” This is not,and cannot,be a principle.It is at most an exception to the principle.