Harris v. Mangum

• Decision Date: 29 March 1922
• Docket Number: 252.
• Citation: 111 S.E. 177,183 N.C. 235
• Parties: HARRIS v. MANGUM.
• Court: North Carolina Supreme Court

111 S.E. 177

183 N.C. 235

HARRIS v. MANGUM.

No. 252.

Supreme Court of North Carolina

March 29, 1922

Appeal from Superior Court, Wake County; Bond, Judge.

Action by Nonie B. Harris, administratrix of J. C. Harris, against P. H. Mangum. From judgment for plaintiff, defendant appeals. New trial.

Civil action for the recovery of damages for the wrongful and negligent death of plaintiff's intestate, tried by Bond Judge, and a jury, at the October-November term of the superior court of Wake. The intestate was standing near a steam boiler used by the defendant in the operation of a sawmill when the boiler exploded causing the death of the intestate. There was evidence for plaintiff tending to show that her intestate was an employee of the defendant, and evidence for defendant tending to show that he was not. The jury found that the intestate was such employee, answered the issue of negligence in favor of the plaintiff, and assessed damages. The defendant appealed.

In the absence of an explanation, the bursting of a boiler justly and reasonably warrants an inference of negligence within the doctrine of res ipsa loquitur, which in its distinctive sense permits negligence to be inferred from the physical cause of an accident.

Armistead Jones & Son and H. E. Norris, all of Raleigh, for appellant.

R. N Simms, J. H. Finlator and R. L. McMillan, all of Raleigh, for appellee.

ADAMS J.

Applying the doctrine of res ipsa loquitur to the cause of the intestate's death his honor instructed the jury as follows:

"The defendant having admitted that an explosion occurred, the law raises a presumption that the explosion was due to negligence and shifts upon the defendant the burden of showing that the explosion was not negligently caused."

This instruction the defendant assigns as error, and in our opinion his exception should be sustained. The verdict, considered in reference to his honor's charge, established as between the defendant and the intestate the relation of master and servant. In a large body of decisions, especially in those of the federal courts, the maxim res ipsa loquitur is not applied in actions arising from the relation of master and servant, although, says Labatt, no satisfactory reason is given why in such cases it should not apply. Mas. and Ser. (2d Ed.) 1601. Some of the courts, emphasizing the peculiar contract of the employee who ordinarily assumes the risks incident both to his employment and to the negligence of his fellow servants, deny the applicability of the maxim in its strict and distinctive sense. To what extent these decisions may be affected by the abrogation of the common-law doctrine of fellow servants in the enactment of the federal Employers' Liability Act is not germane to this discussion. Jones v. R. R., 176 N.C. 260, 97 S.E. 48. Other courts, which do not exclude the rule in cases between master and servant, nevertheless confine its application to a scope more limited than that which is generally recognized in the case of carrier and passenger. In a number of decisions rendered in this jurisdiction it is held that the maxim applies to causes originating in the relation of master and servant. Kinney v. R. R., 122 N.C. 961, 30 S.E. 313; Wright v. R. R., 127 N.C. 225, 37 S.E. 221; Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; Ross v. Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L. R. A. (N. S.) 298; Hemphill v. Lumber Co., 141 N.C. 488, 54 S.E. 420; Fitzgerald v. R. R., 141 N.C. 531, 54 S.E. 391, 6 L. R. A. (N. S.) 337.

In applying the maxim confusion has frequently arisen from a failure to observe the distinction between circumstantial evidence and the technical definition of res ipsa loquitur. This distinction is not merely theoretical; it is practically important. 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 are 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. Fitzgerald v. R. R., 141 N.C. 531, 54 S.E. 391, 6 L. R. A. (N. S.) 337 and note; Byers v. Steel Co., 159 F. 347, 86 C. C. A. 347, 16 L. R. A. (N. S.) 214 and note.

We are not inadvertent to decisions in which it is held that the doctrine of res ipsa loquitur does not apply in case of injury or death caused by the explosion of a boiler; but in our opinion the better reasoning, as well as eminent judicial opinion, supports its application. The principle is embedded, not in the relation existing between the parties, but in the inherent nature and character of the act causing the injury.

"When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." Scott v. London Co., 3 H. & C. 596; Shear. & Red. on Neg. (6th Ed.) § 58b.

When in safe condition and properly managed boilers do not usually explode; therefore, in the absence of explanation, the bursting of a boiler justly and reasonably warrants an inference of negligence. Rose v. Trans. Co. (C. C.) 20 Blatchf. 411, 11 F. 438; Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep. 530; Young v. Bransford, 12 Lea (Tenn.) 232; Judson v. Powder Co., 107 Cal. 549, 40 P. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146; Beall v. Seattle, 28 Wash. 593, 69 P. 12, 61 L. R. A. 593, 92 Am. St. Rep. 892; Lykiardopoulo v. New Orleans, 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976; Newton v. Texas Co., 180 N.C. 561, 105 S.E. 433; Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425, 12 A. L. R. 1297. We hold, then, upon the present record, that the plaintiff had a right to invoke in aid of her action against the defendant the doctrine of res ipsa loquitur.

In our opinion, however, his honor's instruction is subject to the criticism of imposing upon the defendant the burden of disproving negligence. Furniture Co. v. Ex. Co., 144 N.C. 639, 57 S.E. 458; Stewart v. Carpet Co., 138 N.C. 61, 50 S.E. 562; Ross v. Cotton Mills, supra; Womble v. Grocery Co., supra; Overcash v. Electric Co., 144 N.C. 573, 57 S.E. 377, 12 Ann. Cas. 1040; Page v. Man. Co., 180 N.C. 335, 104 S.E. 669. In the last of these cases Walker, J., said:

"It is true that expressions are to be found in some of our cases, filtered there from two or three cases based on the English rule, which justified his honor's charge, but since they were decided we have adhered to the true and correct rule, which is stated in Stewart v. Carpet Co., supra; Womble v. Grocery Co., supra; Cox v. R. R., supra; Shepard v. Tel. Co., supra, and many other cases, and which we have applied in this case, the substance of which is that the burden to prove his case is always on the plaintiff, whether the defendant introduces evidence or not. Where we have said 'it is the duty of the defendant to go forward with his proof,' it was only meant in the sense that if he expects to win it is his duty to do so or take the risk of an adverse verdict, and not that any burden of proof rested upon him. He pleads no affirmative

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