Johnson v. Johnson

Morris, J.

Defendant brings forward two assignments of error, the first related to the court’s failure to grant her motion for nonsuit and the second to the signing and entry of the judgment. After reviewing the evidence, we are of the opinion that defendant’s motion for nonsuit at the close of plaintiff’s evidence should have been granted. We are in agreement with counsel for both parties that the doctrine of res ipsa loquitur does not apply under the facts of this case.

Neither the evidence nor the findings of fact by the court offers a sufficient explanation of why the door of the truck came open. Looking at the evidence of the plaintiff in the light most favorable to him and giving him the benefit of every doubt and reasonable inference, we are still left with two possible explanations of why the door came open — either it was not securely closed and opened as a result of the physical force created when the truck began negotiating the curve or it was opened, accidentally or on purpose, by the child. This, at best, leaves the trier of the facts with a choice of possibilities or a finding based on conjecture, which is insufficient to support á finding that the defendant’s negligence, if any, was the proximate cause of the injury to the child. As was said in Powell v. Cross, 263 N.C. 764, 140 S.E. 2d 393 (1965):

“The sufficiency of the evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one in his own affairs may base his judgment and as a basis for the judgment of the court, he must adduce evidence of other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for mere guess and must be such as tends to actual proof.” (citations omitted.)

See also Jones v. Smith, 3 N.C. App. 396, 165 S.E. 2d 56 (1969); 65A C.J.S., Negligence, § 244(2).

Reversed.

MalláRD, C.J., and Graham, J., concur.