Chesapeake & Potomac Telephone Co. v. Hicks

Orth, C. J., delivered the opinion of the court. The primal issue on this appeal is whether the doctrine of res ipsa loquitur arose upon the facts and circumstances of the case. STATEMENT OF THE CASE On 14 July 1972 JOSEPH H. HICKS filed a declaration in the 'Circuit Court for Baltimore County whereby he instituted an action in tort against CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND (Telephone Co.) claiming $75,000 damages he suffered due to its negligence. On 22 August the issue was joined by the plea of the Telephone Co. that it did not commit the wrongs alleged. 1 The action went to trial before a jury on 29 April 1974.

At the close of evidence offered by Hicks, the ⁵⁰⁵ Telephone Co. moyed for a directed verdict in its favor and the motion was denied. A motion for a directed verdict in its favor was again made by the Telephone Co. at the close of all the evidence and the court reserved its decision thereon until after the verdict of the jury. Maryland Rule 552. On 1 May the jury rendered a verdict in favor of Hicks and against the Telephone Co. for the sum of $26,635, interest and costs, and judgment was entered on verdict nisi causa.

A motion by the Telephone Co. for judgment n.o.v. was filed on 6 May, 2 heard on 28 May, and denied on 25 June 1974, upon which judgment absolute was entered. The Telephone Co. filed a timely order for appeal. THE FACTS We give a compendium of the evidence adduced at the trial. On 11 March 1964 William L. Huber, who owned, in partnership with his sister, and operated the Last Chance Tavern at 3423 Eastern Boulevard in Baltimore County and the Telephone Co. entered into a contract whereby, in relevant part, the Telephone Co. agreed to “install and maintain a public telephone station” in the nature of a “Company Owned Booth” (as distinguished from a “Customer Owned Booth”) on Huber’s premises to “furnish service to the public thereat”, and to pay Huber a commission of 15% on collections.

Huber agreed to “provide suitable and safe space for the facilities furnished and proper light therefor, [and] suitable and safe approach to and retirement from such space”, to “keep in a clean condition any booths furnished by Telephone Company”, and to “permit the public to use said facilities”. He agreed to ⁵⁰⁶ “take all reasonable precautions to protect the property of Telephone Company on [his] premises. . ..” It was expressly set out that any booths or other equipment furnished by Telephone Co. “shall remain its property and be returned to it, whenever requested, in as good condition as reasonable wear and tear will permit.” The Telephone Co. installed the telephone booth. A roügh diagram of the scene was offered in evidence by the Telephone Co. and its counsel referred Hicks to it during the cross-examination of that witness. The transcript, time and again, read “(indicating)”, but unfortunately, as is too often the case, counsel did not read into the record exactly what was being indicated, so we can only construe the “indications” from the tenor of the questions and answers.

The diagram bears no directional arrow but it appears that the Last Chance Tavern is located near the southwest corner of Eastern Boulevard and Carroll Island Road. It faces on Eastern Boulevard, set back about 30 feet, and is about 100 to 150 feet from Carroll Island Road. As one faces Eastern Boulevard, the entrance door to the Tavern is at the extreme right front of the building, and a sidewalk runs along the front and left side. The area between Eastern Boulevard and the Tavern and an area on the left side of the building has a crushed stone surface (“a crusher run”) and is used for “head-in” parking of automobiles, accommodating in such manner a one car line.

As one leaves the Tavern, looking toward Eastern Boulevard, the telephone booth, according to Hicks, “is located on the left hand side, left hand front side of the bar just outside the door . . . sitting on the sidewalk.” It is in line with a telephone pole close by Eastern Boulevard in the front parking area. The booth was described by Hicks as “a normal booth that you see outside along the road. It is red and aluminum. ... It had a metal floor and it’s just a normal phone booth.” When the Telephone Co. installed the booth it had an electrical contractor connect the necessary electrical lines.

An invoice offered by the Telephone Co. showed that on 28 March 1964 the contractor “Installed a 120-volt circuit to and connected same to the lights in outdoor phone booth, as per instructions by Mr. Joseph ⁵⁰⁷ Smith”, 3 at a total cost of $27.28. Huber said the electrical power for the booth came from an outlet on the outside of the building. It ran “to the corner of the building. The Coca-Cola Company used to have a coca-cola machine sitting there and it’s right under the eave of the building.” Huber said it was his outlet and it runs to “the panel box”, to his “circuit breaker box” in the back room of his bar.

The outlet was a double receptacle, “you can put two plugs in it”, and it was there before the telephone booth was installed. On 10 June 1970, about 9:30 A.M., Hicks, a Constable for the District Court of Maryland, went to a trailer park in the Middle River area of Baltimore County to serve an eviction notice. The address in the notice proved to be a vacant lot. He thought the address given was a clerical mistake and decided to telephone the Court to inquire about it.

He was familiar with the telephone booth at the Last Chance Tavern and went there to make the call. He got change to deposit in the telephone from Huber. He described what happened. “Well, when I went outside I had the change in my hand and I was reaching down to get two nickles to make the phone call and when I stepped into the phone booth, that quick, I got this terrific jolt and it either blowed me out or I stumbled out of or fell out of the phone booth and landed about ten to 15 feet from the phone booth”, and “directly in front” of it. He “honestly and truthfully” did not know how he got to 10 to 15 feet from the booth, but he found himself lying on the ground on his left side, and he did not have his shoes on.

John Haag, the bartender at the Last Chance, was reporting for work. Haag helped him up. Hicks testified: “Well, I was shaken. I really didn’t know how — it is hard to describe what went through you at the time.

It was like a bolt or a hot chill went through you. I just can’t find words to describe it. ... I wasn’t in any shape to get up.” Haag took him inside the Tavern. He felt “shaken” and noticed that he was “giddy — more dizzy than anything.” Haag brought him his shoes.

Hicks told Huber, “I don’t know ⁵⁰⁸ where my change went, it’s all over the parking lot.” They went out to look for it. In the meantime, Huber had called the Telephone Co., and while Hicks and Huber were outside a Telephone Co. employee drove up in a company truck. Hicks told him what had happened. Huber drove Hicks to Hick’s home. 4 The Telephone Co. employee who arrived on the scene was Edmund Hohman, an installer-repairman.

He had been dispatched to the Last Chance on information that “a telephone booth was hot and that somebody had been shocked.” He investigated the booth. “We have on our truck what we call a magic wand. It is a B voltage tester and it tells you if there is any foreign voltage or anything, trailers or phone booths, and I used this to test the booth and it lit up, which indicates that there is voltage on it.” He went immediately into the Tavern, determined where the circuit breaker was, “and started turning off circuit breakers until I found the right one.” The one that supplied current to the booth was in the “on” position, meaning that power was still going to the booth. He turned it off, tagged it so no one would turn it back on, and again checked the booth with the B voltage tester to be sure it was no longer hot. He observed “that the conduit that comes out of the booth had been twisted out of the socket where it actually joined to a joint and by the way it was turned or had been turned and had pulled the electrical wires inside which, I assume, that is what caused it because it had cut into one of the conductors. . . .

The conduit is used as a ground on the booth unless there is a ground wire in the conduit also. ... I found that the conduit was broken. . . . Well, myself, I was wondering why it was broken and I just looked at the booth and you could tell that the booth had been twisted in a way because of the old concrete and the new where the booth had been sitting. I assumed that twisting motion of the booth is what caused the conduit to break.” 5 ⁵⁰⁹ ISSUES FOR DECISION I It is abundantly clear from argument of counsel and the comments of the court on the motion for a directed verdict and from the charge to the jury that the court permitted the case to go to the jury on the basis that the doctrine of res ipsa loquitur applied with regard to negligence by the Telephone Co. Therefore, the issue of first importance is whether the doctrine was properly invoked upon the facts and circumstances shown by the evidence.

THE LAW Res Ipsa Loquitur Ever since 1863 when a barrel of flour rolled out of a warehouse window in England and injured a person passing on the public street, the thing has been attempting to speak for itself as, during the argument in the case resulting, Baron Pollock suggested, in Latin, it should. Byrne v. Boadle, 2 Hurl. & Colt. 722. 6 The attempts have been loud but not clear. Indeed, some eminent Jurists have expressed disenchantment with the entire concept. Former Chief Judge Bond of the Court of Appeals, in what, Singley, J., a present member of that Court, termed “a memorable dissent” 7 , said: “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 ⁵¹⁰ a legal maxim, and is not a rule. It is merely a common argumentative expression of ancient Latin brought into the language of the law by men who were accustomed to its use in Latin writings. * * * It may just as appropriately be used in argument on any subject, legal or otherwise. Nowhere does it mean more than the colloquial English expression that the facts speak for themselves, that facts proved naturally afford ground for an inference of some fact inquired about, and so amount to some proof of it. The inference may be one of certainty, as when an excessive interest charge appeared on the face of an instrument, or one of more or less probability only, as when negligence in the care of a barrel of flour was found inferable from its fall out of a warehouse.” Despite Chief Judge Bond’s views, res ipsa loquitur, notable for persistence, if not memorable for clarity, is viable in Maryland today.

It is referred to as a doctrine, thought of as a legal maxim and considered as a rule, but not without reservations. As early as 1894 the Court warned: “In all cases of the character we have been considering, the most careful scrutiny should be given to the circumstances attending the accident, and whilst an excellent authority has said that after all the question resolves itself into one of common sense, we would add that it should be of a high order. For it is unquestionably true that the authorities are by no means in accord on the question which arises out of the doctrine of res ipsa loquitur.” Howser v. C. & P. R. R. Co., 80 Md. 146, 153 . The problems which arose when the barrel rolled out of the warehouse window and into the lives of tort lawyers 8 were not solved by lapse of time.

Judge Singley pointed out in Stoskin v. Prensky, 256 Md. 707 , 713: “Perhaps influenced by Chief Judge Bond’s antipathy, our predecessors have shown great restraint in the application of res ipsa loquitur and ⁵¹¹ have not extended it beyond the classic factual patterns where it has proved particularly useful. . . .” (Citations omitted). Three-quarters of a century ago, McSherry, C. J., explained res ipsa loquitur in Benedick v. Potts, 88 Md. 52 , 54-58: “It is a perfectly well-settled principle that to entitle a plaintiff to recover in an action [for damages based on negligence] he must show not only that he has sustained an injury but that the defendant has been guilty of some negligence which produced that particular injury. The negligence alleged and the injury sued for must bear the relation of cause and effect. The concurrence of both and the nexus between them must exist to constitute a cause of action.

As an injury may occur from causes other than the negligence of the party sued, it is obvious that before a liability on account of that injury can be fastened upon a particular individual, it must be shown, or there must be evidence legally tending to show, that he is responsible for it; that is, that he has been guilty of the negligence that produced or occasioned the injury. In no instance can the bare fact that an injury has happened, of itself and divorced from all the surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred.

But this inference must, after all, be a legitimate inference and not a mere speculation of conjecture. There must be a logical relation and connection between the circumstances proved and the conclusion sought to be adduced from them. This principle is never departed from, and in the very nature of things it never can be disregarded. There are instances in which the circumstances surrounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident existence of negligence as the efficient cause of an injury complained of.

These are the instances where the doctrine of res ipsa loquitur is applied. This phrase, which literally translated means that ‘the thing ⁵¹² speaks for itself,’ is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident; and the doctrine which it embodies, though correct enough in itself, may be said to be applicable to two classes of cases only, viz., first, ‘when the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition or event that is in its very nature so obviously destructive of the safety of person or property and is so tortious in its quality as, in the first instance at least, to permit no inference save that of negligence on the part of the person in the control of the injurious agency.’ . . . But it is obvious that in both instances more than the mere isolated, single, segregated fact that an injury has happened must be known. The injury, without more, does not necessarily speak or indicate the cause of that injury — it is colorless; but the act that produced the injury being made apparent may, in the instances indicated, furnish the ground for a presumption that negligence set that act in motion.

The maxim does not go to the extent of implying that you may from the mere fact of an injury infer what physical act produced that injury; but it means that when the physical act has been shown or is apparent and is not explained by the defendant, the conclusion that negligence superinduced it may be drawn as a legitimate deduction of fact. It permits an inference that the known act which produced the injury was a negligent act, but it does not permit an inference as to what act did produce the injury. Negligence manifestly cannot be predicated on any act until you know what the act is. Until you know what did occasion an injury, you cannot say that the defendant was guilty of some negligence that produced that injury.

There is, therefore, a difference between inferring as a conclusion of fact what it was that did the injury; and inferring from a known or proven act occasioning the injury that there was negligence in the act that did produce the injury. To the first category the maxim res ipsa loquitur has no application; it is confined, when ⁵¹³ applicable at all, solely to the second. In no case where the thing which occasioned the injury is unknown has it ever been held that the maxim applies; because when the thing which produced the injury is unknown it cannot be said to speak or to indicate the existence of causative negligence. In all the cases, whether the relation of carrier and passenger existed or not, the injury alone furnished no evidence of negligence — something more was required to be shown. .. . “Whether, therefore, there be a contractual relation between the parties or not, there must be proof of negligence or proof of some circumstances from which negligence may be inferred, before an action can be sustained.

And whether you characterize that inference an ordinary presumption of fact, or say of the act that caused the injury, the thing speaks for itself, you assert merely a rebuttable conclusion deduced from known and obvious premises. It follows, of course, that when the act that caused the injury is wholly unknown or undisclosed, it is simply and essentially impossible to affirm that there was a negligent act; and neither the doctrine of res ipsa loquitur nor any other principle of presumption can be invoked to fasten a liability upon the party charged with having by negligence caused the injury for the infliction of which a suit has been brought.” Conditions for the Application of Res Ipsa Loquitur In Maryland there are three elements which a plaintiff must prove to invoke the doctrine of res ipsa loquitur. It seems that they had their origin in Scott v. London Dock Co., 3 Hurl. & Colt. 596, decided in the Exchequer Chamber shortly after Byrne v. Boadle. Scott was the case cited in Weilbacher v. Putts Co., 123 Md. 249, 265-266 , as the one “most frequently referred to in this State as containing the true statement of the rule .. .” As quoted in Weilbacher , it was said in Scott: “There must be reasonable evidence of negligence.

But where the thing is shown to be under the management of the defendant or its 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. ⁵¹⁴ it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” 9 See Chesapeake Iron Works of Baltimore City v. Hochschild, Kohn & Company, 119 Md. 303, 309 ; Walter v. Balto. Electric Co., 109 Md. 513, 526 ; Decola v. Cowan, 102 Md. 551, 554-555 ; Howser v. C. & P. R. R. Co., supra, at 149. W. Prosser, Torts § 39, p. 214 (4th ed. 1971) suggests that conditions usually stated in America for the application of the principle of res ipsa loquitur were derived originally from the first edition of Wigmore on Evidence, which appeared in 1905. In 4 Wigmore, Evidence § 2509, p. 3556-3557 (1st ed. 1905), a reason for the acceptance of the doctrine was given: “With the vast increase, in modern times, of the use of powerful machinery, harmless in normal operation, but capable of serious human injury if not constructed or managed in a specific mode, the question has come to be increasingly common whether the fact of the occurrence of an injury (unfortunately now termed ‘accident’ by inveterate misuse) is to be regarded as raising a presumption of culpability on the part of the owner or manager of the apparatus. ‘Res ipsa loquitur’ is the phrase appealed to as symbolizing the argument for such a presumption.” Noting that a rule of that sort had been conceded to exist in England for a generation, Wigmore said that the presumption had spread rapidly in the United States, “although with much looseness of phrase and indefiniteness of scope. . . .

What its final accepted shape will be can hardly be predicted.” He warned: “But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary ⁵¹⁵ action at the time by the party injured.” The language used to spell out these considerations was not changed in subsequent editions of Wigmore’s Treatise. They were paraphrased, however, by Prosser, supra, § 39, p. 214: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” Considerations for the application of the doctrine were generally discussed in Potts v. Armour & Co., 183 Md. 483 , but not specifically enumerated. They were detailed in Williams v. McCrory Stores Corp., 203 Md. 598, 601-602 , in language paralleling that of Wigmore, and citing 9 Wigmore, Evidence, § 2509 (3d ed.) as authority: “The rule of res ipsa loquitur is limited by the following considerations: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; and (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.” In Proctor Electric Co. v. Zink, 217 Md. 22 , the Court delineated the elements in language similar to that used by Prosser. It said, at 29, that an inference that an injury was due to the defendant’s negligence was allowable when the plaintiff proves that he has been injured “(a) by a casualty of a sort which usually does not occur in the absence of negligence, (b) by an instrumentality within the defendant’s exclusive control, (c) under circumstances indicating that it ⁵¹⁶ was not caused by any voluntary act or neglect of the plaintiff.” This identical language was used in Munzert v. American Stores, 232 Md. 97, 104 .

But in Smith v. Kelly, 246 Md. 640, 643-644 , the Court reverted to the words of Wigmore followed in Williams . Then in Leikach v. Royal-Crown, 261 Md. 541, 547-548 , the Court gave its version of what it had set out in Munzert as “the three criteria necessary for successful reliance on the doctrine of res ipsa loquitur”: “1. A casualty of a sort which usually does not occur in the absence of negligence. 2. Caused by an instrumentality within the defendant’s exclusive control. 3.

Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.” It used this identical language in Ramsey v. D. P. A. Associates, 265 Md. 319, 325 , and in Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 597 . See Harford v. Lloyd E. Mitchell, Inc., 269 Md. 64, 71 . It seems that the Court has settled on this language as the means of expressing the three elements necessary for the application of res ipsa loquitur in Maryland. We observe that although the various ways of setting out the elements over the years differed in language and form, they were in accord in substance.

At first glance it would appear that first and third criteria necessary for successful reliance on the doctrine of res ipsa loquitur were significantly changed in Blankenship v. Wagner, 261 Md. 37 . Finan, J., speaking for the Court, said, at 42: “In order to invoke the doctrine of res ipsa loquitur in Maryland certain circumstances must be shown by the evidence. First, it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant’s negligence. Williams v. McCrory Stores Corp., 203 ⁵¹⁷ Md. 598, 601, 102 A. 2d 253 (1954); Cf.

Short v. Wells, 249 Md. 491, 496 , 240 A. 2d 224 (1968). Second, the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant’s exclusive control. Smith v. Kelly, 246 Md. 640, 644 , 229 A. 2d 79 (1967). The third element is that it must appear from the evidence that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury.

Johnson v. Jackson, 245 Md. 589, 593 , 226 A. 2d 883 (1967); Joffre v. Canada Dry, 222 Md. 1, 9 , 158 A. 2d 631 (1960); Hickory Transfer Co. v. Nezbed, [202 Md. 253] at 263. Cf. Restatement (Second) of Torts, § 328D (1965).” (Emphasis added). Judge Finan was careful to point out, however, that “[o]ur statement of the law is in accord with the prior decisions of this Court. . . .” Id.

The prior decisions of the Court of Appeals did not limit the first criterion to a defendant’s negligence, but spoke in terms of the event not occurring in the absence of someone’s negligence. 10 The third criterion as enunciated by Judge Finan followed the former statements that it must appear that the casualty was not due to any voluntary action or contribution on the part of the plaintiff, but added the additional condition that it must appear from the evidence also that no action on the part of “a third party or other intervening force might just as well have caused the injury.” Johnson v. Jackson, supra, cited in support of this statement, was a case where the plaintiff proved “too much and too little” because his evidence was sufficient to exclude res ipsa loquitur without being sufficient to establish negligence. 245 Md. at 595-596 . To like effect was Hickory ⁵¹⁸ Transfer Co. v. Nezbed, 202 Md. 253, 263 . We think it patent that the enlarged dimension of the third criterion as phrased by Judge Finan merely emphasized the “exclusive control” criterion of the second element. This is manifest from the supporting citation of Joffre v. Canada Dry, supra, concerned primarily with the element of control. 222 Md. at 8-9 .

The “Cf.” citation given by Judge Finan as authority for the third criterion as set out by him, is Restatement (Second) of Torts, § 328D (1955). But the Restatement lumps together in its second criterion the second and third criteria as stated in Maryland. 11 We conclude that the Court of Appeals did not intend that the three criteria as set out in Blankenship change in any way the criteria as previously enunciated. We observe that only two months after the decision in Blankenship , the Court filed the opinion in Leikach v. Royal Crown, supra, which set out the three criteria as they appeared in Munzert v. American Stores, supra, with no reference to Blankenship . Nor has the Court since used the language of Blankenship in stating the criteria.

The Element of Exclusive Control It is the second criterion, that the plaintiff must prove that the casualty was caused by an instrumentality within the defendant’s exclusive control, which concerns us in the case sub judice. The evidence adduced was legally sufficient to show that the casualty was of a sort which usually does not occur in the absence of negligence (1st criterion) and that the casualty occurred under circumstances indicating that it did not result from the act or omission of the plaintiff (3rd criterion). 12 From the time of the first recognition of res ipsa loquitur by the Court of Appeals of this State to its latest opinion concerned with that doctrine, it has invoked and adhered to the element of exclusive control, consistently holding that res ipsa loquitur does not apply unless it is ⁵¹⁹ shown that the casualty was caused by an instrumentality within the defendant’s exclusive control. 13 It has stated the criterion in various ways. “Again, the rule does not apply if the defendant is not in exclusive control or management of the injurious agency”, Frenkil v. Johnson, 175 Md. at 605. “In order to establish this doctrine of res ipsa loquitur, one of the essential elements required is that the thing which is the proximate and natural cause of the injury is wholly in the possession and control of the one party or the other. The independent neglect of another as the efficient and proximate cause of the injury must be excluded.” Bohlen v. Glenn L. Martin Co., 193 Md. at 460. “An inference of negligence cannot be drawn unless ‘the thing which produced the injury was under the management and control of the defendant’. . . .” Lee v. Housing Auth. of Baltimore, 203 Md. at 462 . “Res ipsa loquitur does not apply where the defendant does not have control of the instrumentality.” Dorsey v. General Elevator, 241 Md. at 107. “The doctrine of res ipsa loquitur is not available . . . since the machine was not in the sole control of [defendants].” Smith v. Kelly, 246 Md. at 644 . “Insofar as the negligence aspect of this suit is concerned the doctrine of res ipsa loquitur could not apply since the apparatus causing the injury was not in the control of defendant at the time of the injury.” Hacker v. Shofer, 251 Md. at 676. “Res ipsa loquitur situations permit an inference or presumption of negligence and of proximate causation. This relaxation of the normal rules of proof is thought to be ⁵²⁰ justified because the instrumentality causing injury is in the exclusive control of the defendant, and it is assumed he is in the best position to explain how the accident happened.” Peterson v. Underwood, 258 Md. at 19.

In Stoskin v. Prensky, supra, the Court put it differently, declaring flatly, “[W]e do intend to hold that [res ipsa loquitur] cannot be availed of in a case like this one where it is by no means clear that the only fault was the defendant’s.” 256 Md. at 715 . And in the circumstances of Giant Food, Inc. v. Washington Coca-Cola Bottling Company, Inc., supra, the Court declined “to extend the doctrine of res ipsa loquitur to a case against multiple defendants absent a showing that their liability was joint or that they were in joint or exclusive control of the injury producing factor; . . . .” 273 Md. at 602 . What was meant by “exclusive” was discussed in Frenkil v. Johnson, supra, at 605-606: “It should be noted that the term ‘exclusive,’ when used to define the quantity of the possession, control, or management by the defendant of the injurious agency, is not employed in the sense that the possession, control, or management must be several, so that, for the inference of defendant’s negligence to be operative, the defendant in possession, control, or management must be singular and never plural. The meaning of the term as here employed is that the possession, control, or management must be exclusive as against all who do not have a concurrent joint possession, control, or management in fact, either as joint actors, possessors, or users, in respect of the injurious agency; or by way of representation or identification, as, generally, principal and agent, master and servant, members of a co-partnership, and corporation and employees.

Cooley on Torts (3rd Ed.) 252, 262, 223, 242 et seq. See Cox v. Forrest, 60 Md. 74, 80 . The signification of the term ‘exclusive’ is that the possession, control, or ⁵²¹ management by the defendant of the injurious agency must not be shared with any other who is not concurrently and jointly in possession, control, or management of the injurious agency, so as to be concurrently and jointly liable in tort for the acts and things done in respect of such injurious agency. “Where, however, the probability that the injury is due to negligence is materially greater than that it is due to any other cause, and it appears that the defendant exclusively managed or controlled, and was responsible for the management or control of, the thing or condition which worked the injury, and the surrounding circumstances, and that the injury was one which, in accordance with the common knowledge of mankind and its experience in similar circumstances, would not ordinarily happen, unless because of some negligence on the part of the person having such control and management, the proper and natural inference forthwith arising is that the injury complained of was caused by the defendant’s negligence, and the doctrine applies.” In Walker v. Vail, supra, at 327-328, the Court noted that “control is not the same thing as a contractor’s obligation to render further services.” So in that case, where the casualty could have been caused by the absence of a cotter key and there was no explanation as to when, how or through whom the condition was created, the doctrine did not apply. “The cotter key could have been negligently omitted at the time of the installation, or it could have been installed negligently, or it could have been removed by third persons after a proper installation. The jury had no basis in the testimony for a choice based on a rational inference.

It could reach a conclusion only by speculation.” Id., at 328. It has been held that the inference is not permissible “where the lapse of time and the opportunity for interference by others weakens the probability that the injury is attributable to the defendant’s act or omission.” Lee v. Housing Auth. of Baltimore, supra, at 462. The Court observed that the ⁵²² control retained by the defendant was a qualified one, “and there was at least the possibility of access by others.” Id., at 463. Another facet of the “exclusive control” criterion is that “when an appliance or machine not obviously dangerous, has been in daily use for a long time, and has uniformly proved adequate and safe, its use may be continued without imputation of negligence.” Stewart & Co. v. Harman, 108 Md. 446, 455 .

So “[p]assage of time between the act of negligence and the subsequent injury is a factor to be considered, for it increases the possibility that there was an intervening independent act of a third party which would make the doctrine inapplicable. ... Of course the plaintiff must show the condition of the instrumentality has not changed or been altered in the interim.” Leidenfrost v. Atl. Masonry, supra, at 250. Therefore, it has been held that the doctrine is not applicable “because of the opportunity for intervening forces to have contributed to the machine’s malfunction through no fault of [the defendants].” Smith v. Kelly, supra, at 644. “However, evidence of complete control is not required.

It may be established by evidence sufficient to warrant an inference of its existence, and circumstantial evidence may suffice. The plaintiff is not required