Ivey v. Rollins

111 S.E.2d 194 (1959) 251 N.C. 345

Charles M. IVEY, Jr., Administrator of the Estate of John W. Hadnot,
v.
Clyde T. ROLLINS, Administrator of the Estate of Luke R. Hadnot, Jr.

No. 596.

Supreme Court of North Carolina.

December 2, 1959.

McLendon, Brim, Holderness & Brooks, Greensboro, for appellant.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for appellee.

PER CURIAM.

A petition to rehear was submitted to the Court in Conference by the Justices to whom it was referred. Greene v. Lyles, 187 N.C. 598, 122 S.E. 297.

The petition to rehear is based on the failure of the Court to apply the doctrine of res ipsa loquitur to the facts in the case. No other question is raised.

Under our decisions, the doctrine of res ipsa loquitur is not applicable in this case. Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411; Pemberton v. Lewis, 235 N.C. 188, 69 S.E. 2d 512; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, 479; Springs v. Doll, 197 N.C. 240, 148 S.E. 251.

"Generally, a defendant's negligence will not be presumed from the mere happening of an accident, but, on the contrary, in the absence of evidence on the question, freedom from negligence will be presumed." Etheridge v. Etheridge, supra; Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381.

The question as to whether or not the doctrine of res ipsa loquitur applied to the facts in this case having been argued by counsel for the appellant and fully considered by the Court on the former hearing, the Court will not disturb its judgment. Weston v. John L. Roper Lumber Co., 168 N.C. 98, 83 S.E. 693.

The petition to rehear is therefore dismissed.

Petition dismissed.