Kekelis v. Whitin MacHine Works

160 S.E.2d 320 (1968) 273 N.C. 439

Patricia KEKELIS
v.
WHITIN MACHINE WORKS.

No. 683.

Supreme Court of North Carolina.

April 10, 1968.

Harold I. Spainhour, High Point, for plaintiff appellant.

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

SHARP, Justice.

Taken in the light most favorable to plaintiff, the evidence tends to show: On 21 September 1964, during "the first shift," defendant completed the installation of a yarn-processing machine for plaintiff's employer, Burlington. Second-shift employees got "the heat leveled and creeled the yarn in." On the third shift, which began at 11:00 p. m., Burlington's fixer "checked out" the machine, and it was started. The machine did not work properly; the yarn broke continuously, a condition ordinarily caused by excessive heat. About an hour later, as plaintiff went about teaching another employee to operate the machine, she received an electric shock, which injured her arm.

Ordinarily, a defendant's negligence may not be inferred from the mere fact of an occurrence which injures a plaintiff. On the contrary, in the absence of evidence on the subject, freedom from negligence will be presumed. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477. In this case, plaintiff's evidence is sufficient to allow the jury to find that she received an electric shock from a machine which defendant had installed between 9 and 18 hours earlier, and that the shock injured her. She has, however, offered no evidence tending to show any fault on the part of defendant. Therefore, unless—as plaintiff contends—the mere fact of injury, under the circumstances here disclosed, is evidence from which the jury may infer defendant's lack of due care, the judgment of nonsuit must be sustained. 3 Strong, N.C. Index, Negligence § 24 b and c (1960).

The principle of res ipsa loquitur, as generally stated in our decisions, is this: When an instrumentality which caused an injury to plaintiff is shown to be under the control and operation of the defendant, and the accident is one which, in the ordinary course of events, does not happen if those who have the management of it use the proper care, the occurrence itself is some evidence that it arose from want of care. Young v. Anchor Co., 239 N.C. 288, 79 S.E.2d 785; Etheridge v. Etheridge, supra; Springs v. Doll, 197 N.C. 240, 148 S.E. 251 ; Ridge v. Norfolk Southern R. R., 167 N.C. 510, 83 S.E. 762; 3 Strong, N.C. Index, Negligence § 5 (1960); Stansbury, N.C. Evidence § 227 (2d ed. 1963) and cases cited therein. The principle does not apply, inter alia, when more than one inference can be drawn from the evidence as to whose negligence caused the injury, Springs v. Doll, supra, or when the instrumentality causing the injury is not under the exclusive control or management of the defendant, Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21.

Negligence and causation, like other facts, may, of course, be proved by circumstantial evidence. Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; 3 Strong, N. C. Index, Negligence § 24c (1960). As pointed out in Restatement (Second) of Torts § 328D (1965), "Without resort to Latin the jury may be permitted to infer, when a runaway horse is found in the street, that its owner has been negligent in looking after it; or when a driver runs down a visible pedestrian, that he has failed to keep a proper lookout. When the Latin phrase is used in such cases, nothing is added. A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it." Id. at p. 157.

Res ipsa loquitur (the thing speaks for itself) simply means that the facts of the occurrence itself warrant an inference of defendant's negligence, i. e., that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking. Ridge v. Norfolk Southern R. R., 167 N.C. 510, 83 S.E. 762; Sweeney v. Erving, 228 U.S. 233, 33 S. Ct. 416, 57 L. Ed. 815.

In Harris v. Mangum, 183 N.C. 235, 237, 111 S.E. 177, 178, Adams, J., drew the following distinction "between circumstantial evidence and the technical definition of res ipsa loquitur":

"Res ipsa loquitur, in its distinctive sense, permits negligence to be inferred from the physical cause of an accident, without the aid of circumstances pointing to the responsible human cause. Where this rule applies, evidence of the physical cause or causes of the accident is sufficient to carry the case to the jury on the bare question of negligence. But where the rule does not apply, the plaintiff must prove circumstances tending to show some fault of omission or commission on the part of the defendant in addition to those which indicate the physical cause of the accident." (Emphasis added.)

The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff's injury is introduced, the court must nonsuit the case. When such evidence is introduced and the only inference remaining is that the fault was the defendant's, the plaintiff has produced sufficient circumstantial evidence to take his case to the jury.

The foregoing rule was applied in Plunkett v. United Electric Service, 214 La. 145, 36 So. 2d 704, 3 A.L.R. 2d 1437. There the defendant installed a gas heater in the attic of the plaintiff's home on December 22nd. About 10:00 p. m. on December 24th, electricity was cut off when an ice storm caused wires to break. About 6:00 a. m. on December 25th, a fire started from the heating unit and caused extensive damage to the house. The plaintiff sued for damages and relied upon the doctrine of res ipsa loquitur even though, "at the time of the fire, the heating unit was in plaintiff's home and under their control and management." The trial court found that the plaintiff had not tampered with the furnace since the defendant left the premises 39 hours earlier. In awarding damages, the court said that the only logical inference was that some fault on the defendant's part had caused the fire. After the plaintiff had shown freedom of fault on the part of all through whose hands the instrumentality had passed after it left the defendant, the doctrine of res ipsa loquitur then became applicable because—the court said—it was "reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed." Id. at 167, 36 So.2d at 711, 3 A.L.R. 2d at 1446.

Although in Plunkett v. United Electric Service, supra, the Louisiana court did not ipsissimis verbis make the distinction between circumstantial evidence in general and the technical rule of res ipsa loquitur, it did so in effect. The decision was that the plaintiff, by negating the responsibility of all others, had established by circumstantial evidence, in addition to the physical cause of the fire, that the negligence of the defendant alone was responsible for it. The court said:

"It must be remembered that, in cases like this, (unlike most instances where res ipsa loquitur is invoked) the plaintiff does not obtain the benefit of the doctrine by merely showing the unusual accident and the resulting injury. On the contrary, plaintiff is required to establish with certainty that the instrumentality installed by defendant is the source of the damage; that he was without fault and that the time elapsing between the installation and the damage was such as to make it reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed." Id. at 167, 36 So.2d at 711, 3 A.L.R. 2d at 1446.

In Peterson v. Tidewater Power Co., 183 N.C. 243, 111 S.E. 8, plaintiff's cottage was destroyed by fire "an hour or two" after defendant's employees had connected gas fixtures inside with the main outside. In sustaining a verdict for the plaintiff, this Court said: "There is evidence from which the jury could reasonably infer that all other causes for the fire had been eliminated, leaving none but those attributable to defendant's want of care, or that of its employees, which is the same thing." Id. at 246-247, 111 S.E. at 11.

In automobile accident cases, we hold that "[t]he mere fact that an automobile veers off the highway is not enough to give rise to an inference of negligence." Yates v. Chappell, 263 N.C. 461, 465, 139 S.E.2d 728, 731. When, however, a plaintiff's evidence "tends to remove everything that might have influenced the movement of the car, causing it to leave the road, save and except the hands of the man at the wheel," the plaintiff has offered circumstantial evidence sufficient to take his case to the jury on the question of the driver's actionable negligence. Lane v. Dorney, 252 N.C. 90, 94, 113 S.E.2d 33, 36; accord, Peoples Bank & Trust Co. v. Snowden, 267 N.C. 749, 148 S.E.2d 833; Yates v. Chappell, supra.

In the instant case, the machine from which plaintiff received an electric shock was not under the control of defendant at the time plaintiff was injured. Sometime during the first shift, defendant had turned it over to Burlington, which had had its fixer to "check out" the machine, and its second-shift employees to get the "heat leveled" and the yarn "creeled in." The fact that plaintiff received a shock from the machine undoubtedly allows an inference of negligence on the part of some person, but her evidence leaves unanswered the question, whose was the fault. It is a fair inference from plaintiff's testimony that she, an instructor in the use of the machine, was operating it in a proper and customary manner. She did not, however, offer any evidence tending to negate negligence on the part of those who manipulated or worked with the machine during the few hours which elapsed between the time defendant turned the machine over to Burlington and the time plaintiff was injured. Neither the "fixer" who checked out the machine and started it nor the employees who "got the heat leveled and creeled the yarn in" testified. Plaintiff's evidence does not disclose what these operations entailed or how they were performed.

Since defendant had delivered the machine which caused plaintiff's injury into the hands of Burlington's employees who had thereafter exercised control over it— even though for a relatively short period—, plaintiff could not rely upon res ipsa loquitur. Having failed to produce evidence that those employees were free from fault, she was not entitled to go to the jury.

The judgment of nonsuit is

Affirmed.

HUSKINS, J., took no part in the consideration or decision of this case.