108 Va. 333 | Va. | 1908
delivered the opinion of the court.
The trial court entered judgment for the defendant on a demurrer to the evidence, to which ruling the plaintiff brings error.
The defendant had neither ownership nor control of the electric appliances on the plaintiff’s premises. The house was wired by the owner, under the inspection of the city electrician, and the wiring and electric equipment were his property. The two experts, who examined the premises to discover the cause of the accident, are agreed that excessive voltage could only have been transmitted into the building by one of two means: Either by the transformer being out of order, or by a crossing of the secondary wire with some other wire of higher voltage; neither of which conditions was found to exist. On the contrary, the testimony of both these experts (one introduced by the plaintiff and the other by the defendant) shows that, in •their opinion, the accident was due to the circumstance that the brass on the light bulb protruded from the socket in such a way that, when the light was on, the upper end of the brass
To sustain a recovery, the plaintiff relies chiefly on the doctrine of res ipsa loquitur; and calls special attention to the case of Alexander v. Nenticoke Light Co., 209 Pa. 571, 58 Atl. 1068, 67 L. R. A. 475, 17 Am. Neg. Rep. 354. There is, however, obvious dissimilarity in the facts of the two cases. In the outset, the opinion in the Pennsylvania case states: “The premises of the appellant * * * were lighted by electricity. The electric light was furnished by the appellee, an electric light company. It had wired the store and cellar of the plaintiff, furnished the electric lamps, and made and maintained the connections * * * He went into his cellar to show goods to a customer, and while handling, in the usual way, an ordinary incandescent light bulb, suspended from the ceiling by a flexible extension cord, was severely shocked and seriously injured. Prom the facts submitted, it ap|>eared that when he was shocked the electric wires on his premises were charged with a higher voltage than they should have carried, hut the cause of this was not shown to have been any specific negligence of the defendant.” The court held, upon the foregoing premises, that the presumption was that the company was negligent.
The differentiating features between the Pennsylvania case and the case in judgment are, the presence in the former case,
In the case of Scott v. London &c. Docks Co., 3 H. & C. (Com. L. R. U. S. 134), Erle, C. J., with respect to the application of the doctrine of res ipsa loquitur, observes: “There must be some evidence of negligence. But when the thing is shown to be under the management of the defendant or his servants, and the occurrence is such that, as in the ordinary course of things does not happen if those who have the management use the proper care, it affords reasonable evidence, in the’ absence of explanation by the defendant, that the occurrence arose from want of care.”
The doctrine rests upon the assumption that the thing which causes the injury is under the exclusive management of the defendant, and the evidence of the true cause of the accident is accessible to the defendant and inaccessible to the person injured. Ross v. Double Shoals Cotton Mill, 140 N. C. 115, 52 N. E. 121, 1 L. R. A. N. S. 298; Wigmore on Ev., sec. 2509; 1 Shear. & Red. on Neg., sec. 59.
The decisions of this court accord with the foregoing principles.
In Richmond &c. Co. v. Rubin, 102 Va. 809, 41 S. E. 834, the company suffered its trolley wire to sag and come in contact with the plaintiff’s ’phone wire, and was held responsible for a fire traceable to that cause.
So, in Norfolk R. &c. Co. v. Spratley, 103 Va. 379, 49 S. E. 502, and Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. 148, the injuries, for the infliction of which the companies were held answerable in damages, were occasioned by broken wires
But the doctrine of res ipsa loquitur can have no application where the accident is due to a defective appliance under the management of the plaintiff; nor to a case involving divided responsibility, where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible.
Prom the standpoint of a demurrer to the evidence, the plaintiff has failed to establish actionable negligence against the defendant, and the judgment of the trial court, which so holds, must be affirmed.
Affirmed.