Gaston v. Smith

CARSON, Judge. The defendant assigns as error the submission of the facts to the jury with an instruction on the doctrine of res ipsa loquitur. This doctrine is applicable where the instrumentality which caused the damages was under the exclusive control of the defendant and it was such as does not ordinarily occur in the absence of negligence on the part of the defendant. O’Quinn v. Southard, 269 N.C. 385, 152 S.E. 2d 538 (1967) ; Page v. Sloan, 12 N.C. App. 433, 183 S.E. 2d 813 (1971). It is not necessary to show the precise negligent act of the defendant to invoke the doctrine of res ipsa. In fact, if the specific acts of negligence are relied upon, direct or circumstantial evidence is normally required rather than an inference. Lea v. Light Co., 246 N.C. 287, 98 S.E. 2d 9 (1957) ; Colclough v. A. & P. Tea Co., 2 N.C. App. 504, 163 S.E. 2d 418 (1968). A thorough discussion of the doctrine of res ipsa loquitur is contained in the case of Lane v. Dorney, 252 N.C. 90, 113 S.E. 2d 33 (1960). This case concerned an automobile accident where a car in good mechanical condition ran off the road causing the injury. The traveled portion of the road was dry and paved. No other travelers were using the highway at the time and place of the accident. A tire mark was found leaving the paved surface of the road and leading to the wrecked vehicle. No other indications of tire marks were found. There was no evidence of a blow out, blinding lights, skidding, or other mechanical defects, or negligence on the part of another traveler. The Supreme Court held the doctrine of res ipsa to be inapplicable under those circumstances. It pointed out that many things other than the negligence of the operator can cause an automobile accident, and the fact of the accident is insufficient to give an inference of negligence. Rather, the court held that the evidence inferred that the defendant, in rounding the curve, failed to exercise due care, to maintain a proper lookout, and to keep his car under control, and that the case should have been submitted to the jury on the issue of actionable negligence. The facts in the instant case are analogous to those in the Lane case. The fire itself does not give rise to an inference of negligence. The plaintiffs, however, have gone further than the mere showing of the occurrence of the fire. Their evidence tended to show that the defendant was alone, in his apartment at the time the fire broke out. He had been drinking, had been smoking, and had fallen asleep in front of the television set. [245] The fire broke out on the floor beside his chair. He was intoxicated when he was taken to the hospital. It further negatived other causes by showing that no combustibles were stored in the area and that the fire was not electrical in origin. As in the Lane case, the evidence presented by the plaintiff was sufficient to show that the specific cause of the injury was the careless smoking of the defendant. This circumstantial evidence was sufficient to submit to the jury the question of actionable negligence. Kekelis v. Whitin Machine Works, 273 N.C. 439, 160 S.E. 2d 320 (1968) ; Wilkerson v. Clark, 264 N.C. 439, 141 S.E. 2d 884 (1965). We hold, therefore, that the trial court committed error in submitting the case to the jury under the doctrine of res ipsa. New trial. Chief Judge Brock and Judge Morris concur.