Watt ex rel. Watt v. Housing Authority

HiggiNS, J. The evidence disclosed that two or three months before the plaintiff’s injury a former tenant of apartment No. 319 had a can of Drano in the apartment. Evidence that the can was seen thereafter is lacking. The owner had not seen it. She cleaned the apartment [130] prior to moving. Those who helped to move did not see it. The agents of the defendant who spray-painted and cleaned the interior of the apartment testified for the plaintiff by adverse examination. They did not use and did not observe any can of Drano, either in, or about the apartment. An occupant of another apartment testified she saw a can of Drano on the windowsill of the apartment about noon and again as she brought in her clothes before night on the day the plaintiff was injured. For the purpose of testing the sufficiency of the evidence, we must give full weight to her testimony. She had no opportunity to know whether the can was full, partially full, or empty; so, whether the can contained Drano is speculation. There is no proof any employee of the defendant put the can on the windowsill, or knew it was there. All the direct and positive evidence of those who were in a position to know was to the contrary. There is no evidence in the record that any agent of the defendant knew a can containing any dangerous substance was on the windowsill or anywhere else about the apartment where children might discover it and be injured. The most that may be inferred is that a Drano can was on the windowsill at twelve o’clock and still there at the time the witness cleared her clothesline in the afternoon. It may not be inferred that this short time was sufficient to charge the defendant with constructive notice sufficient to show a negligent failure to make reasonable and proper inspection, and discover and remove a dangerous condition. Only by inference may we charge the defendant with the responsibility for placing a can of Drano in reach of children. Another inference is necessary before we may place that particular can in the hands of the boy who threw some burning liquid into the face of the plaintiff. Another inference is necessary to identify the harmful fluid as Drano. The plaintiff’s doctor said the injury may have been caused by Drano. In the law of negligence, inferences may be drawn if a proper factual basis exists for them. But they must be drawn from facts in evidence. An inference may not be based on other inferences. “Evidence of actionable negligence need not be direct or positive. Circumstantial evidence is sufficient, either alone or in combination with direct evidence . . . A basic requirement of circumstantial evidence is reasonable inference from established facts. Inference may not be based on inference. Every inference must stand upon some clear and direct evidence, and not on some other inference or presumption.” Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411. “We may say with certainty that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict and should not be left to the jury.” Lee v. Stevens, [131] 251 N.C. 429, 111 S.E. 2d 623; Miller v. Coppage, 261 N.C. 430, 135 S.E. 2d 1; Kelly v. Willis, 238 N.C. 637, 78 S.E. 2d 711; Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670; Poovey v. Sugar Co., 191 N.C. 722, 133 S.E. 12. Under the authority of the foregoing and other decisions to like effect, we hold the evidence offered was insufficient to make out a case for the jury. The judgment of nonsuit entered in the Superior Court is Affirmed.