Appeal by plaintiff from Davis, Judge. Judgment entered 6 September 1978 in Superior Court, Randolph County. Heard in the Court of Appeals on 20 September 1979.
Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.
Although plaintiff does not argue the question in her brief, this case squarely raises the issue of whether the doctrine of res ipsa loquitur will apply to carry plaintiff's case to the jury. This evidentiary principle is grounded in the superior logic of ordinary human experience and operates to permit an inference of negligence from the very happening of the incident itself. 2 Stansbury's N.C. Evidence, Burden of Proof and Presumptions § 227 (Brandis rev. 1973). In Newton v. Texas Co., 180 N.C. 561, 567, 105 S.E. 433, 436 (1920), our Supreme Court, in what has become a classic statement of the rule, described it this way:
[W]hen a thing which causes injury is shown to be under the management of the defendant, and the accident is such 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 accident arose from a want of care.
The reason for the rule is one of necessity. That is, when the circumstances logically suggest a probability of negligence, yet the necessary evidence to prove it is absent or unavailable, it is only just that plaintiff be permitted to have a jury decide the question. Obviously, then, if there is concrete evidence, direct or
circumstantial, of defendant's negligence, plaintiff does not need the benefit of the res ipsa rule. Thus, it has been held that, when the evidence is sufficient to disclose the cause of the accident, res ipsa does not apply, since, in such a case, nothing is left to inference. Benton v. North Carolina Public-Service Corp., 165 N.C. 354, 81 S.E. 448 (1914); Colclough v. The Great Atlantic & Pacific Tea Co., Inc., 2 N.C. App. 504, 163 S.E.2d 418 (1968). See also Stansbury, supra ; 58 Am. Jur. 2d, Negligence § 477 (1971).
We recognize that the res ipsa doctrine is not only difficult to articulate, but, even more frequently, it is troublesome to apply. One analytical aid is to identify those situations in which the rule does not arise. In North Carolina, as elsewhere, the following instances preclude the applicability of res ipsa :
(1) Where all the facts are known and testified to;
(2) Where the evidence establishes that more than one inference can be drawn as to the cause of the injury;
(3) Where the existence of negligence is not the more reasonable probability;
(4) Where the matter is purely a question of conjecture;
(5) Where the accident was due to an act of God or the tortious ...