Ivey v. Rollins

PbR CüRIAm. A petition to rehear was submitted to the Court in Conference by the Justices to whom it was referred. Greene v. Lyles, 187 N.C. 598, 122 S.E. 297. ■ The petition to rehear is based on the failure of the Court to apply the doctrine of res ipsa loquitor to the facts in the case. No other question is raised. Under our decisions, the doctrine of res ipsa loquitor is not applicable in this case. Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411; Pemberton v. Lewis, 235 N.C. 188, 69 S.E. 2d 512; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477; Springs v. Doll, 197 N.C. 240, 148 S.E, 251. “Generally, a defendant’s negligence will not be presumed from the *346 mere happening of an accident, but, on the contrary, in .the absence of evidence on the question, freedom from negligence will be presumed.” Etheridge v. Etheridge, supra; Williamson v. Randall, 248 N.C. 20, 102 S.E. 2d 381. The question as to whether or not the doctrine of res ipsa loquitor applied to the facts in this case having been argued by counsel for the appellant and fully considered by the Court on the former hearing, the Court will not disturb its judgment. Weston v. Lumber Co., 168 N.C. 98, 83 S.E. 693. The petition to rehear is therefore dismissed. Petition dismissed.