I cannot concur in all the discussion of the majority opinion upon the question of res ipsa loquitur. The doctrine of res ipsaloquitur is one which arose out of necessity. In certain cases it was permitted to create a mere inference, which stood until rebutted, but applied only when there was no other evidence on the subject. Literally speaking, the doctrine means, "The thing speaks for itself." All that is meant is that the circumstances involved in, or connected with, *Page 325 an accident are of such an unusual character as to justify, inthe absence of any other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having possession or control of the article or thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation be given, the only fair and reasonable conclusion is that the accident was due to some omission of defendant's duty. The rule means that, whenever a thing which produced the injury is shown to have been under the management and control of the defendant, and the occurrence is such as, in the ordinary courseof events, does not happen, if due care has been used, the fact of the happening of the accident creates the presumption that the accident and injury resulted from the negligence of the defendant. It cannot be said that the collision of two motor vehicles at an intersection is such that, in the ordinary course of events, it does not happen if due care has been used on the part of one of the parties. Such accident may be entirely the fault of one of the parties; in fact, it is a matter of common knowledge that motor vehicles having the right of way, as this bus had, are drawn into collisions or other accidents, without any fault whatever upon the part of the owner or driver thereof. The evidence in the case at bar tends very strongly to show that the accident was caused entirely by the negligent driving of the motor car which crashed into the bus. The said doctrine does not apply to a case of the kind at bar in the manner set out. This accident happened in broad daylight. The plaintiff was in a position to see, and did see, what was transpiring on the part of both motor vehicles for some period before, and up to the time of, and at the time of, the collision. The plaintiff testified fully on the subject. The evidence indicates quite strongly that the automobile driver caused the accident. There is in this case no occasion for adopting the extreme rule of necessity known asres ipsa loquitur. The rule should only be applied in the absence of any other evidence bearing upon the subject, and then only under the conditions recognized in law. Central R. Co. v. Peluso, 286 Fed. 661; 6 Words Phrases (3d Ser.) 745 — 754; 45 Corpus Juris 1193, Section 768 et seq.
The doctrine arose out of the sympathetic instinct of the *Page 326 court. It was applied in a peculiarly narrow class of cases, where the plaintiff was utterly without evidence; but it has progressed slowly but surely, by inches, until now the doctrine is being injected into conditions where it never belonged, and is being applied where and in a manner in which it was never intended to be used.