35 N.C. App. 207 | N.C. Ct. App. | 1978
Lead Opinion
Plaintiff contends that the trial court erred in directing a verdict for defendant. When all plaintiff’s evidence, including that excluded by the court as being corroborative only, is considered in the light most favorable to plaintiff, it is insufficient in our opinion to raise an inference of actionable negligence on the part of defendant.
The plaintiff argues that the defendant was negligent in failing to inspect the stool from which she fell, and in failing to correct or warn of an alleged defect which caused the accident. While the evidence discloses that two of the stools were loose on their pedestals at an earlier time, there is no evidence whatsoever of any defect existing prior to the accident in the stool from which the plaintiff fell. Plaintiff’s testimony that when she sat upon the stool “it flipped me backwards onto the floor” and
Plaintiff urges that the doctrine of res ipsa loquitur is applicable to the facts of this case. In order to invoke the aid of this doctrine, the plaintiff must show “(1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.” Jackson v. Gin Co., 255 N.C. 194, 197, 120 S.E. 2d 540, 542 (1961). Plaintiff relies upon Schueler v. Good Friend Corp., 231 N.C. 416, 57 S.E. 2d 324 (1950), to support this contention. In Schueler a tier of chairs overturned causing the plaintiff’s injuries. There was evidence that the chairs were uniquely constructed in that the tops were larger than the bases causing them to be top-heavy and requiring that they be bolted to the floor in order to remain upright. Furthermore, the plaintiff’s evidence in Schueler disclosed that a week before the occurrence the tier of seats had been secured to the floor. Thus, there was evidence available from which an inference could be drawn as to why the seat fell when plaintiff sat upon it. From this evidence the court concluded that “ ‘the accident presumably would not have happened if due care had been exercised.’ ” Schueler v. Good Friend Corp., supra at 418, 57 S.E. 2d at 325. We cannot come to the same conclusion in the present case.
The case of Smith v. McClung, 201 N.C. 648, 161 S.E. 91 (1931), provides a more fitting analogy in terms of the quantum of evidence presented. In that case while the defendant dentist was injecting novocaine into the gum of the plaintiff, the point of the needle broke off causing injury to plaintiff. The case was submitted to the jury which found the defendant negligent. On appeal the Supreme Court reversed the trial court’s denial of defendant’s motion for nonsuit. In holding that the doctrine of res ipsa loquitur was inapplicable the Court reasoned: “There is nothing
In Springs v. Doll, 197 N.C. 240, 242, 148 S.E. 251, 253 (1929), the Supreme Court stated that the doctrine would not apply “where the existence of negligent default is not the more reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture ...” See also Lane v. Dorney, 250 N.C. 15, 108 S.E. 2d 55 (1959), rev’d on other grounds on rehearing, 252 N.C. 90, 113 S.E. 2d 33 (1960). The only evidence furnished by the plaintiff tends to show that an accident occurred and that the top of the stool was at an angle to the pedestal after the accident. From this evidence we cannot say that the defendant’s negligence was the more probable cause of plaintiff’s fall from the stool. The doctrine of res ipsa loquitur is inapplicable to the facts of this case.
The judgment directing a verdict for the defendant is affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I dissent from the majority opinion and vote to reverse. I differ with the majority in that I believe there was sufficient evidence from which the jury could conclude that there was a defect in the stool from which the plaintiff fell and that this defect was known to the defendant. The testimony of the plaintiff as quoted in the majority opinion is that the defendant had been having problems with the stools, and that Mrs. Clinard had reported this to the company. I believe that this evidence of trouble with the stools is such that the jury could infer that it included the stool from which the plaintiff fell.
