*1 COMPANY, MOBIL CHEMICAL Petitioner, al., Respondents.

Edward L. BELL et

No. B-4447.

Supreme Court of Texas.

Dec. 1974.

Rehearing Denied Jan. 1975.

248 *3 new for a trial. and remanded

has reversed disapprove of the 564. We 502 S.W.2d of civil holding of the court ipsa cases respect of res to submission compelled to affirm find ourselves plaintiffs have judgment of remand since sought relief from the remand applying a writ of error. case, particular

As extremely are surrounding the event facts Tucker, Cleve Bachman Orgain, Bell & important. This case involves Beaumont, Steakley, Carl and Zollie *4 ter- being constructed to manufacture petitioner. basically ephthalic plant acid [TPA]. - Smallwood, units, A designated & Carl Waldman of Unit two Waldman consists Seele, Beaumont, Hays and William B, design with sever- and Unit .of identical respondents. make inter- al vessels which them common produce designed Each unit is to

related. First, process. paraxy- step TPA in a two McGEE, Justice. to lene is in the oxidation section oxidized damage a suit This is common law TPA, Then precipitate. form crude a solid injuries by Edward L. personal sustained precipitate slurry is into a this mixed Hurley, employees in- A. of an Bell and J. pumped to the an acetic acid carrier constructing large dependent a contractor is purified leach section where the TPA Compa- Chemical plant for Mobil chemical process. operation is heating a This entire escaped por- from a ny, when acetic acid pres- varying degrees of conducted under plant completed and already tion of the highest pressure sure. area where the juryA failed turned over to Mobil. expected leading to the feed line specific acts guilty find that Mobil was of pres- operating leach section where normal ipsa loqui- answered res vary per pounds sures from 425 plaintiffs.1 favorably tur issues square [p. s. i.]. en- findings, judgment was Based on these plaintiff $12,000 point pressure relief mecha- tered recover At this a that each protect system from from Mobil. The court of civil nism included to op- held, alia, theory during pressure surges occur has inter a jury and from improperly eration. this lawsuit arose submitted Since you special pertinent 1. The 6: Do find issues are as follows: SPECIAL ISSUE NO. you preponderance a Do find from evidence SPECIAL ISSUE NO. 3: from, found, preponderance failure, you a so that at such have proximate ques question cause of the incident the time and on the occasion terepli- tion? ANSWER: We do. the leach section of A of the Unit you SPECIAL NO. 7: Do ISSUE find acid thalic was under exclusive preponderance the evidence that from control and direction the defendant? question failed on the occasion in defendant do. ANSWER: We pressure gauge leach have a on the sec you Do find ISSUE NO. 5: SPECIAL do not. tion? ANSWER: We preponderance from a of the evidence that you ISSUE NO. 10: Do find SPECIAL question on the occasion defendant failed preponderance the evidence that from ordinary in the use care maintenance question, the defendant on the occasion terephthalic leach A section of Unit value section? failed close the leach plant? acid ANSWER: do It failed. ANSWER: We not. mechanism, fairly gram pressure relief failure detailed mechanism description simplified necessary. reproduced A dia- below. *5 quarter pipe

The feed in means runs line three or four inches inch which pipe to pipe horizontally diameter. From this one from the inch a a leads one up valve, to designed to relief to valve and then on a vertical which is [Valve A] open pressure p. opening when i. “T” the top the exceeds 850 s. connection. On pressure 0-1,000 p. pressure and relieve the “T” by allowing gauge the s. i. some escape the fluid to larger pipe opening into a inserted the bottom has and except eventually kept from which it the bleeder valve which closed returns normally During feed gauge. line. Since the feed drain the line fluid from slurry, danger operations kept open carries a there is a A is normal Valve slurry p. solid matter in the s. i. accumulating pressure gauge the reads keeps and clogging rupture pres- the relief the valve mechanism. since the lower disc prevent To pipe leading slurry this mechanism. the one inch surized out of the relief However, rupture pressure p. relief valve s. contains a disc if the exceeds 850 blocking i., ruptures, slurry access to relief the the comes into the valve. Under disc operations prevent mechanism, pressure normal and the disc will the relief this slurry gauge positive reading, entering pressure registers from relief inform- However, personnel pressure surge ing operating mechanism. if a the discs p. replaced designed exceeds 850 s. i. disc should be the relief valve before rupture, up allowing slurry clogged. to travel becomes valve, pipe one inch to the relief pressure. relieves As an additional Company had Mobil contract- Chemical precaution, rupture a second disc is insert- plant design ed the and construction pipe ed in the one inch a short distance contractor, independent C. F. Braun to an the first one above and serves same Company. As each section purpose as the first. completed, tested was was By

turned over to Mobil. March A completed pressure A had all Unit gauge is attached between C. F. Braun hydrostatic test under two discs to as a and conducted a serve “tattletale” test hydrostatic operating personnel supervision tell that the discs have of Mobil. ruptured. system with filling been water The attachment is made consisted of operat- tion. The district court overruled Mobil’s pressure substantially under above judgment for non obstante pass- A motion veredic- ing Unit level to check leaks. judgment plaintiffs. and entered accepted by Mobil. ed this test and was inspection of Mobil also conducted a visual agreed The court of civil system satisfied that entire and was the facts raise the doctrine of properly and that all Unit assembled in res ipsa loquitur but concluded that equipment began then place. Mobil cases where there is evidence caus- “commissioning” the process Unit. negligence, than es other the defendant’s equipment operating the This consisted of if it finds from a should be asked acid, with acetic first with water and later preponderance of the evidence that: actually producing without TPA. “1. circumstance The character and April Shortly 1966 a after noon reasonably the accident is such as to lend pressure in the surge pressure caused that, to the belief without p. s. i. At feed line exceed 850 would not have occurred. pressure worked time the relief mechanism ruptured, relief perfectly discs —the thing injury “2. caused pres- pressure, and the valve relieved the the manage- shown under to have been the discs were gauge sure indicated that ment and control of the defendant. ruptured. personnel Mobil maintenance reasonably probable “3. It is more replaced discs, acid then bled the acetic the accident was caused defendant’s mechanism, out and continued of the relief negligence than not.” 502 567- process. before commissioning Just 568. P.M., line was April the feed 5:00 time, however, again overpressured. This granted We writ of error this case pressure relief failed mechanism a res submitting examine the method *6 pressure spurted out high acetic under acid ipsa loquitur jury. to con- case the We atmo- quarter pipe into the of the and by suggested clude that the formulation personnel sphere, creating danger a to both it proper is since not of civil as he realized and fire As soon hazard. jury. judge the roles confuses of Griffith, was, Jerry Mobil’s where leak process put protective superintendent, on of discussing the method Before line equipment, out on the feed crawled exactly submission, on helpful it focus is to stopped Valve A. closing the leak of encompassed within the doctrine what is meaning phrase, Hurley ipsa loquitur. The were em- res

Plaintiffs Bell and itself,” speaks was used working thing “the ployees and were of C. F. Braun of Pollock, B., discussing in a barrel point at some 70 C. plant Unit B win defendant’s exposed fell from the flour which rupture. Both were feet from the 722, dow, Beadle, 159 Byrne 2 H. C. vapor v. & and suffered to acid strong acetic to has come they Eng.Rep. (Ex.1863), seek re- for which 299 respiratory damage of types cas in limited specific neg- signify certain covery. alleged acts of that They surrounding an acci pres- circumstances ligence have the es the failing in to either ev circumstantial A and sufficient place close Valve dent constitute gauge in or sure negligence ipsa loquitur. defendant’s idence of pleaded res in the alternative Morris, finding. See specific support fact such a find that jury failed to The Texas, L. 26 Texas Ipsa Loquitur in and Res committed negligence were acts of in are those These cases (1948). on Rev. attacked 257 not been findings these have surrounding however, circumstances find, that appeal. jury did occurrence in that the mere ordinary main- event are such care to use Mobil failed inferences supports reasonable failure was the accident that such taining involved negligence ques- there was of the incident cause proximate

251 that res party. is settled In Texas it well negligent that the defendant Elliott, rule evidence loquitur simply 125 is Traction Co. v. Wichita Falls upon 248, whereby (1935); negligence may W. be inferred Tex. 81 S.W.2d 659 (4th Prosser, proof 211-214 at stated above. Owen Law of Torts 39 the factors § Brown, supra; Cola Bot 1971). ed. v. Honea v. Coca Co., supra; tling Wichita Falls Traction Elliott, Co. supra; Co. Texas & Coal v. P. applica doctrine is Kowsikowsiki, 173, 3 v. 125 103 Tex. S.W. present: (1) the ble when two factors are (1910). quoted Texas courts have such that it character the accident is approval following language of the U. ordinarily would in the absence not occur Supreme Sweeney Erving, S. Court v. negligence; instrumentality and (2) 233, 240, 228 U.S. 33 S.Ct. 57 L. been causing injury shown have (1913) Ed. 815 : management under and control Brown, 447 defendant. Owen v. S.W.2d opinion, “In our ipsa loquitur means (Tex.1969); 883 Elevator Bond v. Otis that the facts occurrence warrant Co., McCray (Tex.1965); 681 they the inference of not that Galveston, v. H. & S. A. 89 Tex. compel inference; they such an fur- Harper F. & (1896); S.W. nish negli- circumstantial evidence ; James, (1956) F. The Law of Torts 19.5 gence where § direct be evidence of Prosser, first fac supra at 214. The W. lacking, but it weighed, is evidence to be necessary infer tor support necessarily accepted be as suffi- ence second fac and the cient; they explanation call for support inference necessary tor rebuttal, they necessarily require party. negligent the defendant was the it; they make a decided Co., supra. See Bond Otis Elevator As jury, they not that forestall the requirement such not a the “control” ap- verdict. Res loquitur, where it rigid instrumentality rule must plies, does not convert the defendant’s always pos been in the defendant’s have issue into an affirmative de- session or even that must have been in, fense. When all the defendant’s at time control question for the pre- is whether the injury. Bottling Honea v. Cola Coca ponderance is plaintiff.” with the (1944). It is 143 Tex. above, tersely put sufficient the defendant was control As effect *7 at the time the inferable successfully invoking ispa the res doctrine occurred, probably plaintiff from first so the factor the can survive no-evi probabilities point procedural to the reasonable dence challenges pro has—he duced some neg evidence of the defendant’s support the defendant in a reasonable ligence. He is in position any the same party. negligent was ference that he the plaintiff other who has made out a for case Corp., Oil Birmingham v. Gulf 18 Tex. jury. the presumption No of the defendant’s Morris, Sup.Ct.J. (Nov. Res 1974); 59 negligence arises; the jury merely free Texas, 263-268; Ipsa Loquitur supra at in negligence. to infer See v. Com Sudduth pos Prosser, supra W. at The 218-221. Co., County Mutual Insurance monwealth sibility of other causes does not have plaintiff 454 (Tex.1970). 196 The S.W.2d eliminated, completely be their likeli continues to have of persuading the burden jury hood be the can must so reduced that the jury by preponderance a of all the evi reasonably by preponderance the find of dence negligent. the defendant was any, negligence, the if lies at evidence that Elliott, Wichita Falls su Traction Co. v. Harper the & F. defendant’s door. F. pra; St. Louis of Southwestern Co. James, supra Parks, at 19.7. Texas v. § 97 Tex. 76 S.W. 740 also plaintiff must cor.). The judgmt Loquitur in Tex Morris, ; Ipsa (1903) Res prove instrumentality was under that the as, often supra at While 768-772. management the defend and control of the places the burden ipsa said that res Brown, 447 Owen upon ant. evidence going forward with the discussed, this previously As (Tex.1969). defendant, case rare res requirement interpreted in the fac be must a di danger where the defendant is may Disputes explain setting each case. tual he verdict if chooses rected instrumentality caused Hensley arise as what v. Fort the accident. Worth any, oc if injury, negligence, when the Railway Denver curred, at that in control who writ (Tex.Civ.App. Worth — Fort event, pro plaintiff must any In n.r.e.). ref’d the infer time. This is because jury can ences be duce evidence from which drawn from the circumstances if reasonably conclude that province the accident are within any, defendant. is attributable to the Only in jury, not the court. extraordi nary the mere occur circumstances does compel strongly produce plaintiff

rence of accident so must While negli reasonably jury conclusion that defendant was enabling the evidence gent jury reasonably could not are required factors that the two conclude Atchison, find in Moore v. T. present, otherwise. See that issues does not mean &. Ill.App.2d F. R. S. 171 N. or should quiring these factors must about Annot, 97 A.L.R.2d 511 (1960); pertinent question E.2d 393 be submitted. course, case the defend (1964). Of the de jury’s is whether determination chooses, may, produce ant if evidence to he negligent. “type fendant was of acci impact lessen plaintiff’s circum just dent” and “control” factors are subis- Prosser, supra stantial evidence. See W. sues of this issue. The court ultimate § 40 at 228-229. appeals below has held that a res civil must sub loquiHir the trial court case they raised rely

In on the res these are order mit subissues doctrine, holding. plaintiff disapprove this produce must evi evidence. We conclude, submitting justification jury dence There from which the can particu preponderance evidence, these in a one or both of subissues “type jury’s lar atten both the order to focus the of accident” and “control” However, present. are tion on the matter. we believe factors This is much a not so majority of great rule practice of law is a in the logic as it rule the better —unless negli present, only these factors the ultimate jury are cases to submit cannot reasonably is satisfied gence infer the trial court from the issue. If circumstances of probative both accident that the there is defendant was negli factors, gent. In he whether great many plaintiff should ask cases the upon finding can rely negligent. defendant A prove knowledge to findings negligence necessarily includes type accident in question is acci *8 ordinarily that the would not oc happen dent accident ordinarily in does cur in the Morris, negligence absence of the absence negligence. Res 260-263, of the instru Ipsa Texas, the defendant was control Loquitur supra at 14; Submit Harper supra mentality appropriate n. 2 time. James, F. F. at the & However, jury is unneces expert testimony to the 19.6. these subissues ting on this § may clearly duplicitous, jury factor is confuse sary, admissible and be real issue. necessary from the plaintiff’s McCray and divert its attention case. Galveston, Note, Ex Ry. “Defendant’s H. &. 89 S. A. Tex. See Submission Spe Ipsa Loquitur Simpson 34 95 (1896); S.W. v. Dallas clusive Control” Res Ry. Charge, & Terminal cial Issue 36 Texas L.Rev. (Tex.Civ.App. (1958). writ dism’d — Dallas complaint appeals The first turns

The court of civil has also plaintiffs successfully whether in rebutting ever held that when the defendant’s ipsa voked res suggests by producing doctrine evidence other causes of the acci probative required dent be evidence of both fac negligence, than the defendant’s it whether, Both jury comes a tors. lower held issue “It more courts have reasonably probable ipsa facts of this case doc the accident was raise res agree. by caused trine. defendant’s than We facts show that the plant designed entire only sys is the was as a agree. not.” closed do not Not We tem so required vapors an that acid would not be re trial court not to submit such atmosphere. leased into believe be to do The relief issue but we it would error mechanism jury prevent if it was included to so. The issue as framed asks the same happened sort be occurrence as here. would reasonable find the defendant It this just is true that was a new negligent. This is a determination that the up. However, being started we are trial submitting court must before make dealing type with a minor negligence leak jury. issue to the & Texas hardly can equipment, with Crowder, N. avoided new O. Co. v. Tex. rupture spewing a violent (1885). acid 30 feet If the issue was intended predicate into the seems air. It to infer asking reasonable whether the defendant prevented due care could negligent, have the ac usurpation is a of the accepted cident. And since Mobil had trial court’s traditional function of deter tests, only Unit after extensive had been in mining findings whether fact can be rea equipment control of the for at least sonably two made. If the issue was intended weeks, and had been performing additional as a substitute negligence for the usual is maintenance, tests and it is sue, reasonable it is inferior to and adds nothing to involved, if negligence infer that Mo the traditional formulation. When negligent party. bil was the From cir jury is asked if it finds a fact the pre accident, ponderance cumstances could evidence, the elements reasonably negligence decide that Mobil’s “reasonably” and probably “more than probably re not” caused accident are necessarily included. sulting injuries. Plain We conclude that We therefore conclude that the method ipsa Hurley tiffs Bell and a res made out of submitting res ipsa-loquitur cases for- their burden of case therefore satisfied mulated appeals court of civil is not producing negli evidence some of Mobil’s required proper even a method sub- gence. mission. The court of civil erred complaint argues that Mo- second in holding that the trial court improperly completely rebutting negated bil’s evidence submitted the ipsa res loquitur issues in plaintiffs’ case and made un- this case. to infer that Mobil’s reasonable Besides complaining of the of civil con- court accident. Mobil’s caused the appeals’ issues, testimony formulation of res Mo primarily sisted Marvin bil judgment Fannin, Mobil, asks to render engineer a chemical its grounds favor on that Plaintiffs equipment who after the accident. saw Bell Hurley pipe quarter failed to make He out testified or, did, loquiUir they pressure Mobil A broke between Valve and the completely spew rebutted es out gauge, it. These both are which caused acid sentially pipe arguing “no evidence” points horizontally. theorized that He *9 there is de- support jury’s might no evidence to the it was (1) have broken because finding manufactured, crys- Mobil metal negligent. fectively (2) that was the Cal vert, improperly, “No Evidence” and Evi tallized when threads were cut “Insufficient Error, pipe crystallized dence” or when the (3) Points of the metal 38 Texas L.Rev. upon He installation. (1960). overly tightened was explained pipe ON REMAND could have been the by operational further vibra- weakened rejected have the form sub- Since we tions broke until it was so weak it un- ap- by the of civil suggested mission pressure. der the sudden peals since, remand, this case will on jury certainly the was entitled While 277, of Rule provisions tried under the explanation, it not com believe Procedure, as amend- Texas Rules Civil pelled testimony from both to. There was 1973, September 1, think it we ed effective Griffith, Jerry Mobil’s Plaintiff Bell and appropriate express views to further our process acid was superintendent, the ipsa of res lo- concerning submission up, straight indicating spewing rule, particu- quitur cases under pressure gauge rupture at was located respect cases, as this larly such pipe quarter connection instead of specific one, tried on alternate theories theory. entire discrediting thus Mobil’s negligence ipsa loquitur. and res worked mechanism had Since the same before, could properly day jury First, that a be noted should any weak structural plaintiff concluded that necessarily right have lose the does by Mo probably caused by pleading nesses were more to rely ipsa on doctrine replacing personnel specific purpose bil’s maintenance “The negligence. acts of prior etc., discs, by rupture causes parties than apprise opposing pleading is to against of the Unit. complaint to Mobil’s control grounds of the exact test Mobil’s prepare also have believed them, they may could to meet so that negli inadequate Galveston, or ing procedures were v. issues thus made.” Johnson such discover gently 906, (Tex. followed if did Ry. Co., & N. H. 66 S.W. pumping acid before plaintiff weaknesses Civ.App.1902, structural ref’d). writ If through system. In high pressure pleads only, specific at of negligence acts short, reasonably in specific still jury could acts proof his limited those of the accident fer from the circumstances evi consist of circumstantial probably caused dence, including accident the circumstances Therefore, we hold negligence. reasonably Mobil’s aris accident if the inferences did not err in submit that the trial court are relevant ing from such circumstances jury. Rob However, ting specific the res issues to if alleged. acts 550, 142 Tex. erts v. Texas & P. notice plaintiff’s pleading gives fair ; Yarbrough’s, Inc. (1944) solely specific relying on that he is not (Tex.Civ.App. McNabb, 222 rely but instead intends to also acts 1949, n.r.e.). reasonably ref’d —Eastland writ inferable negligent other acts accident, his

from the circumstances of the is not en Mobil We conclude that proof specific acts al not limited to the judgment in its fa titled to a rendition Bottling leged. Honea v. Coca Cola Hurley have not Plaintiffs Bell and vor. supra; v. El Falls Traction Co. Wichita of error seek writ application filed an liott, supra. judg the trial court’s

ing an affirmance of Likewise, acts proof specific than the in their favor rather remand ment necessarily make court of civil does not trial ordered for new proof party inapplicable since appeals. grant doctrine Since we cannot necessarily inconsist application specific acts is not he files an relief unless error, facts. Of of remand will ent with inferences other judgment writ of course, evidence, introduced Ass’n v. whether Employers’ Ins. Texas stand. defendant, conclu plaintiff Light foot, 162 S.W.2d 139 Tex. surrounding Calvert, sively establishes the facts (1942); Hatchell 930-931 Review, accident, infer Supreme room for Court then there no Some Problems of appli is not (1974). 311-312 ences and the res doctrine Mary’s 6 St. L.J.

255 cable. v. Railway See Sims Dallas & Terminal Denver 408 S.W.2d 761 142 1966, 135 S.W.2d (Tex.Civ.App. (Tex.Civ.App. Worth writ — Dallas — Fort 1939, Prosser, supra no writ); Stayton, W. at 231- n.r.e.); ref’d 9 Texas Forms § 232. But where the is inconclu 5131 (1961).

sive, plaintiff rely is still entitled to on any inferences are consistent with the complicated A more situation evidence. Wichita Falls Traction Co. v. proves plaintiff pleads and arises when the Elliott, supra; Koenning, Smith v. 398 S. proves ipsa pleads a res case and also and W.2d (Tex.Civ.App. Corpus 411 Christi specific — negligence. acts of In instant 1965, n.r.e.). writ ref’d a gener case the trial court submitted both ipsa proof

al negligence issue based res on plaintiff If the given has specific negligence no on issues based tice pleadings in his rely proof will specific he are other acts. There ipsa res loquitur and proba has introduced cases same has been where the method tive factors, evidence of the two requisite Montgomery used. Ward & Co. v. Schar problem facing renbeck, the trial court is how (Tex.Civ.App.— ipsa 153, submit the aff’d, res by case made out 1947), Eastland 146 Tex. S. plaintiff. is 277, This Tyreco Refining controlled Rule (1947) ; W.2d 508 Co. v. Procedure, Texas Cook, Rules Civil (Tex.Civ.App.— 110 S.W.2d 219 provides, pertinent now part: dism’d). Texarkana writ There is obviously overlap some involved since “It shall be discretionary with the court specific negli answers whether to submit separate questions gence affirmatively, issues it should also respect to each of a element case or general answer af negligence issue to submit broadly. issues It shall not be fact, firmatively. In the submission of objectionable question that a general general negligence issue all of embraces or includes a combination of elements or specific grounds negli narrower issues.” gence and case both the submission of the ways is is double submission of the same rule means that in ordinary an negli gence disapprove practice case, sues. We of sub where specific several acts of mitting negligence the same issue in two different alleged are and evidence as to ways, introduced, although each such a would submission submission necessarily not If the broad reversible error. inquiring issue generally whether the plaintiff pleads specific ipsa both res negligent defendant was error each, produces acts evidence of subject objection single that the single general trial court submit a issue should inquires about several elements or is entire negligence embracing issue certainly sues. It means also that in a res range possible supported negligent case, acts where several negligent acts pleads plaintiff If evidence. be inferable from the circumstances of the specific proves both acts and accident, single broad issue inquiring failing prove the latter form while generally about prop would be er, the trial under court has discretion er. Such a general submission was the spe Rule submit practice 277 to either each even before the amendment of evidence, supported by cific acts Rule 277. International-Great Northern now, practice single the normal or submit Lucas, R. Co. v. 128 Tex. 99 S.W.2d embracing all of negligence issue 297 (1936); Yarbrough’s, McNabb, Inc. specific supported evidence. acts 222 S.W.2d (Tex.Civ.App. — Eastland ; writ n.r.e.) ref’d Beaumont Coca Cola Bottling Guillot, Co. v. considered question to be A final (Tex.Civ.App. give trial should writ is whether — Beaumont n.r.e.); ref’d loquitur Hensley v. Fort Worth and an about instruction *11 in an appropriate case. in We held Pitts This rule affords the trial court consid- burg Ponder, Bottling Coca-Cola deciding erable discretion in Works what instruc- (Tex.1969) necessary res proper that tions are and in submit- ipsa loquitur given in ting jury. instruction that issues to the Sound exercise of case2 particularly constituted a in general charge important vio this discretion is in lation of Rule 277 as then written because cases in order accommodate the “plainly that, it jury if range advised the certain wide of situations which can arise exist, jury facts should in these In some cases the infer- were found cases. explosion arising answer 3 that the of from the circumstances of issue No. ences by petitioner’s negli apparent spe- that bottle was caused the accident are so no gence.” necessary. An In other cas- 551. exami cial instruction is give jury charge nation of that it also es it is a cir- reveals sufficient reasons, objectionable being instruction to instruct cumstantial evidence other lengthy, repetitive proved of acts can be and couched in terms them that parties. of the both evidence and inferences victory or defeat of one direct reads, proved. Finally, pertinent there Amended in from other facts Rule 277 now helpful to are it is part: some cases specialized jury give the a more case, shall submitting the court “In the. they find effect that if instruction explanatory and submit instructions such factors, entitled, they required are the two proper be to enable definitions as shall compelled, de- to infer not jury and such to render a verdict negligent. fendant was subject charge shall not be instances is a objection to the example As an and summation charge. expressed above, we believe that our views presented at retrial

if the same evidence case, plaintiffs’ may be of the instant charge com- in its shall not “The court following in the man properly submitted evi- weight of the directly on the ment ner: effect of jury of the or advise dence charge the court’s answers, but their injury an sustain Did Edward Bell 1. ground objectionable on the shall not premises the defend- while on a com- incidentally constitutes April 1966? on or about ant or weight of the evidence ment on the injury Hurley an sustain of their 2. Did A. the effect

advises the J. the defend- premises of part of while on the properly a where it is answers April 1966? or about ant on or instruction definition.” explanatory an you explosion,'then any Special up foregoing time of to the 2. “In connection with any, explosion, caused if you if instructed that find are Issues 3 and No. un- any, Defendant part of the explosion, any, if of an oc- if ipsa loquitur’ ‘the or ordinarily happen ‘res the doctrine with- der currence as would Further, speaks thing prior itself.’ part or event Defendant out fault on upon ipsa loquitur’ delivery rests ‘res the Coca this doctrine the time and at any, explosion, if question proposition an that such and its contents bottle Cola ordinary course in the Plaintiff, be such bottle must the Coca Cola and happen things without does care and with due events negligence, handled its contents was part any, hav- one on the delivery, Cola the Coca after such management control of ing or the exclusive altered was not its contents bottle delivery process.” bottling delivery way changed after such escape 3.Was acid on acetic question occasion in due MUSEUM, INC., STEPHENS COUNTY *12 defendant, agents, its Petitioners, al., et

servants, employees? al., Respondents. Clara J. SWENSON et negligence, 4. you Was such if have so found, No. B-4305. proximate in- cause juries, any, if to Edward Bell ? Supreme Court of Texas. Dec. 1974.

5. negligence, Was such if you have so found, proximate cause of the in- Rehearing 29, 1975. Denied Jan. juries, any, if Hurley? A. J. Damages 6. toas Bell Edward ? Damages

7. Hurley A. ? J.

Among forepart the definitions in the charge, the trial include an

explanation loquitur of res ipsa similar to

the following:

“You are you may instructed that infer

negligence by party but are com-

pelled so, you to do if find

character of the accident is such that it

would ordinarily happen in the ab-

sence of negligence you and if find that

the instrumentality causing the accident management under the and control party at the time the any, causing probably the accident oc-

curred.”

This may require instruction vari- particular

ations under the circumstances

of individual cases.

We affirm judgment of the court of

civil remanding the cause new

trial.

Concurring opinion by DANIEL, J.

DANIEL, (concurring). Justice opinion,

As I understand the Court’s

manner of submission the issues

trial court would not be reversible error in Therefore,

this case. I concur in the re-

sult.