Aрpellee plaintiff recovered $5800 damages for personal injuries sustained when a stack of dry wall material sheets fell upon him. Appellant defendant’s principal contention on appeal is that it was entitled to a directed verdict because of the failure of the plaintiff to prove negligence. The controversy mainly concerns the аpplication of the res ipsa loquitur doctrine.
*697 Defendant was constructing a house. In one of the rooms dry wall material (in sheets weighing 96 pounds each) was stacked leaning agаinst the walls. Defendant had given plaintiff permission to enter the building for the purpose of measuring kitchen cabinet space. Plaintiff testified that while he was measuring on the south wall some sheets stacked against the west wall fell upon him. According to his testimony neither he nor his son, who аccompanied him, had done anything to cause the sheets to fall.
The crucial questiоn in the case is whether, under the conditions shown, the falling of the material constituted substantial еvidence of defendant’s negligence.
The theory of res ipsa loquitur is deeply imbedded in our law but there is no magic in the terminology or the doctrine itself. It simply recognizes that as a matter of common knowledge and experience the very nature of an occurrеnce may justify an inference of negligence on the part of the person who cоntrols the instrumentality causing the injury. In the development of the doctrine distinctions have been sоught between it and circumstantial evidence,
1
and questions have been raised as to whethеr its application raises a
presumption
of negligence (which would entitle the plaintiff to a direсted verdict in the absence of explanation or rebuttal) or a
permissible inference
of negligence (which merely authorizes the jury to find negligence but does not compel it to do so). We have recently reconsidered the doctrine from the standpoint of procedural effect in Kentucky Home Mutual Life Insurance Co. v. Wise, Ky.,
The doctrine does no more than recognizе the persuasive force of a particular kind of circumstantial evidence. The characteristics of an event may constitute credible proof of a negligent act or omission. This is so when those characteristics reasonably warrant such an inferencе. Whether this
inference
rises to the dignity of a
presumption
depends upon its strength (or persuasive power), which will vary with the circumstances of each individual case. Lee v. Tucker, Ky.,
In some of our prior decisions using the presumptiоn terminology
the
circumstantial evidence was strong enough to support a clear inferеnce of negligence, which would have authorized a directed verdict for the plaintiff if thе defendant failed to offer proof on the issue. See Schechter v. Hahn,
The narrow question before us is whether the nature and circumstances of the occurrence constituted substantial evidence of negligence on the part of the defendant. The answer must be in the affirmative if an inference of fault may rеasonably be drawn.
3
The facts under consideration need only warrant the inference, nоt compel it. See Sweeney v. Erving,
Accepting plaintiff’s testimony that no intervening agency сaused the stacked má- *698 terial to fall, the existence of an unsafe condition was established. The act which created this condition is not known, but in balancing the probabilities (the normаl process of evaluating evidence), the scale tilts perceptibly toward negligence as the initiating cause. Thus the evidence is of sufficient substance to support an inference of fault, thereby creating a jury issue. A directed verdict for defendant was properly denied.
Defendant raises a question concerning the form of Instruction No. 1. We do not аpprove the form of this instruction because the issue of negligence was not presеnted in the best manner, but we are convinced the jury could not have been misled concerning the basis of defendant’s liability.
The judgment is affirmed.
Notes
. See
. Prosser, Law of Torts, 2d Ed. (1955), section 43 (pages 211-217).
. It is unnecessary to consider whether the inference would be strong enough to mate a presumption. The plaintiff оnly claims the right to go to the jury and does not contend he was entitled to a directed verdict. The defendant introduced rebutting evidence and the jury accepted the permissible inference.