Jones v. Warner

Mallery, J.

(concurring) — The appellant contends in three assignments of error that the evidence is insufficient to support the court’s finding that the appellant was negligent.

These assignments are directed to the theory of the doctrine of res ipsa loquitur. It is conceded that the damage occurred while the appellant was making adjustments on the valves and mounting the new tires, and had the exclusive possession and control of the automobile.

The appellant does not challenge the application of the doctrine of res ipsa loquitur, but it is his theory that the doctrine does not require him to go forward with evidence sufficient to persuade the trier of the facts that he had exculpated himself, but only to show the possibility that the injury could have happened without his negligence.

Accordingly, he contends that four possible causes of the injury were established by the record. Three of them were advanced by the respondent and are that (1) the valve had been broken by being tightened excessively, (2) the automobile had been driven too fast in low gear while testing the balance of the new tires, and (3) some foreign matter could have fallen into the motor due to appellant’s negligence while the carburetor was removed during the valve-adjusting operation. Naturally, since all of these possible causes of the injury would establish negligence on the appellant’s part, he contends for his own fourth possible cause of the injury, namely, that the valve could have broken because of crystallization of the metal. His theory is that crystallization being a possible cause which does not involve negligence on his part, he has met the burden imposed upon him by the doctrine of res ipsa loquitur.

I think not. The answer is the same whether the doctrine of res ipsa loquitur be viewed (1) as a presumption of negligence, (2) as the burden of going forward with exculpatory evidence, or (3) as circumstantial evidence of negligence. See Prosser on Torts (2d ed.) 199, § 42; 2 Harper and James, Law of Torts, 1075, § 19.5.

The. doctrine is applicable only when the injury is such that it would not ordinarily have occurred but for the negligence of a defendant. When that is true, a defendant is liable unless he can exculpate himself (1) by rebutting the presumption, or (2) going forward with exculpatory evidence, which shows a nonnegligent cause, or (3) rebuts the circumstantial evidence of negligence. It is not enough to show a possibility that the injury happened without negligence. A defendant must persuade the trier of the fact that it probably did so. This is particularly true in the cases of common carriers and bailments of the kind here involved. Burley v. Hurley-Mason Co., 111 Wash. 415, 191 Pac. 630; 8 C. J. S., Bailments, 342, § 50c (2).

I concur in the result of the majority opinion.