Lyles v. Brannon Carbonat1ng Co

• Decision Date: 22 November 1905
• Citation: 52 S.E. 233,140 N.C. 25
• Court: North Carolina Supreme Court
• Parties: LYLES. v. BRANNON CARBONAT1NG CO.

52 S.E. 233

140 N.C. 25

LYLES.

v.BRANNON CARBONAT1NG CO.

Supreme Court of North Carolina.

Nov. 22, 1905.

1. Negligence—Res Ipsa Loquitur—Burden of Proof.

In an action for death caused by negligence, the burden of proof resting on the plaintiff was not shifted to defendant by the doctrine of "res ipsa loquitur"; such doctrine being a mere mode of proving negligence as a matter of evidence.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 218, 225.]

2. Trial—Omission to Charge—Request.

In an action for death caused by the explosion of a soda water tank, the court's omission to fully explain the doctrine of "res ipsa loquitur" was not error, where plaintiff failed to present a prayer embodying the instruction desired.

[Ed. Note.—For eases in point, see vol. 46, Cent. Dig. Trial, §§ 627, 628.J

Appeal from Superior Court, Mecklenburg County; Cooke, Judge.

Action by Jarvis Lyles, as administrator of the estate of Charles Lyles, deceased, against the Brannon Carbonating Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The following issue was submitted: "Was the death of the plaintiff's intestate caused by the negligence of the defendant as alleged in the complaint?" The jury answered it, "No." From a judgment dismissing the action, the plaintiff appealed.

Stewart & McRae, for appellant.

Burwell & Cansler and T. C. Guthrie, for appellee.

BROWN, J. The evidence discloses that the plaintiff's intestate was killed by the explosion of a soda-water tank made of copper and lined with block tin, which was being charged with gas at the bottling works of the defendant in Charlotte. The tank did not belong to the defendant, but bad been borrowed by it on the same day and an hour or so before the explosion from the Charlotte Drug Company, of which W. M. Wilson was the president; the loan having been made by said Wilson. No negligence is alleged in the complaint as to the manner of charging the tank, or in respect to the actions of the servants of the defendant upon whom de-volved the duty of receiving, examining, and charging the tank. The negligence alleged in the complaint consisted solely in using a defective tank. There are several exceptions in the record relating to the admission and rejection of evidence. We have examined them carefully and think they are without merit.

Mr. McRae, the counsel for the plaintiff, in an able argument, rested his main contention upon two alleged errors in the charge of the court: (1) Because his honor erred in instructing the jury that the burden of proof upon the issue was on the plaintiff. (2) Because his honor in his charge failed to explain fully to the jury the doctrine of "res ipsa loquitur." It has never been decided in this state that, where the principle of "res ipsa loquitur" applied, its effect was to shift the burden of proof upon the issue of negligence. In an action for damages for death by wrongful act, the burden is on the plaintiff, upon the issues of negligence and damages (the only issues in this case), and if...