Kekelis v. Whitin Mach. Works

• Decision Date: 10 April 1968
• Docket Number: No. 683,683
• Citation: 160 S.E.2d 320,273 N.C. 439
• Parties: Patricia KEKELIS v. WHITIN MACHINE WORKS.
• Court: North Carolina Supreme Court

Page 320

160 S.E.2d 320

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,...