[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 520 Following reversal of the judgment first entered in this cause (Seaboard Air Line Ry. Co. v. American Dist. Elec. Protective Co., 106 Fla. 330, 143 Sou. Rep. 316) the case again came on for trial upon issues made by the pleadings. It was submitted to a jury, and verdict on the merits returned in favor of the defendant below, plaintiff in error here. The trial judge granted the Circuit Court plaintiff a new trial. The defendant in that court has taken writ of error to the new trial order. (Section 4615 C.G.L., 2905 R.G.S.)
The case to be decided, as made by the record, is this: The railway company sued the protective company for *Page 521 breach of contract. The contract provided that the protective company should assume the duty of installing, operating and maintaining for the benefit of the railway company a watch and fire alarm signal system "in good order." The breach of duty arising from the contract counted on was the alleged negligence of the protective company in not performing its contractually assumed duty in that it negligently and carelessly (as alleged in the declaration) allowed a wire, comprising a part of said protective company's signal system, to sag over the railway company's tracks by reason of which neglect an employee of the railway company was knocked from a freight car passing under same, and thereby seriously injured, for which injury he had made claim against the railway company and had been awarded a settlement in damages to compensate him for said injuries.
At the trial the facts and circumstances of the injuries to plaintiff's servant, in manner and form as alleged in the declaration were supported by substantial evidence to establish same. Defendant below offered no evidence in rebuttal thereof. The jury, notwithstanding the fact that the case was submitted to them solely on the evidence that had been adduced by the plaintiff, nevertheless found a verdict for the defendant. This verdict the trial judge set aside.
The contract between the plaintiff and the defendant was duly received in evidence. That contract, properly construed, imposed a duty on the defendant protective company not to allow its alarm and signal system to become in such disrepair as to permit the wire of same extending over the railway tracks to sag and thereby injure plaintiff's servants while engaged in operating plaintiff's trains. The fact that the wire causing the injury to plaintiff's servant was a wire of the protective company defendant and subject to *Page 522 the terms of the contract was not controverted, but expressly stipulated.
If, so the evidence runs, the wire had not been allowed to sag, plaintiff's servant never would have been injured. So the rule of evidence known as "res ipsa loquitur" was applicable to the facts after it was established in the evidence that the sagging wire was under the exclusive control of the defendant protective company at the time it sagged, and and that it would not have caused the injuries for which plaintiff below was compelled to pay out the sums of money sought to be recovered in this suit, had the protective company used due care in preventing the sagging of the wire causing the injury.
Res ipsa loquitur is not a substantive rule of law, but is rather a rule of evidence. It permits the jury (but not the court in a jury trial) to draw an inference of negligence where the instrument causing an injury is shown to have been under the exclusive management and control of the party charged with negligence, and an accident has occurred from it that under circumstances of due care would not have occurred in the ordinary course of events, except for negligent handling by the party having control of the instrument causing injury. Turner, Law of Implied Negligence, Par. 1, Page 3.
Where the rule of res ipsa loquitur is properly applicable, and the trial jury appears to have arbitrarily ignored it, the trial judge, although he is not authorized to direct a verdict predicated on the evidentiary application of the rule of res ipsa to the facts in evidence, may nevertheless grant the losing party's motion for a new trial where such trial court is clearly of the opinion that the preponderance of the evidence, weighed in the light of such rule, is manifestly in favor of the party against whom the jury's verdict has been *Page 523 found. See: Gravette v. Turner, 77 Fla. 311, 81 Sou. Rep. 476; Florida Power Co. v. Cason, 79 Fla. 619, 84 Sou. Rep. 921.
Tested by the law as hereinbefore delineated, there was no error in entering the order for new trial appealed from in the case now before us, so that order must be and the same is hereby affirmed.
Affirmed.
WHITFIELD, TERRELL, BROWN and BUFORD, J.J., concur.