This is an action to recover damages for personal injuries. The defendant Indiana Michigan Electric Company has been discharged.
The afternoon of August 3, 1938, plaintiff, an attendant at a gasoline filling station in Benton Harbor, while servicing an automobile, was struck on his hand, wrist and leg by pieces of wire. At that time defendant Sollitt Construction Company was engaged in installing 12-gauge pull wires in underground conduits, reached by a pit in the street, with a manhole entrance about 98 feet distant from where plaintiff was injured, and plaintiff claims that broken wires from that operation caused the injuries he sustained. The issues were tried by jury with verdict for plaintiff but, under reserved ruling, the court entered judgment in favor of defendant on the ground that no negligence by it was established by the evidence.
The wire being passed through the conduits was later to pull the electric high tension wires. The wire was headed with a so-called "gopher" fitting the conduit and was forced through by 120 pounds of air pressure. The wire was stretched along the *Page 127 street surface for about 300 feet and was drawn over the edge of the manhole to the conduit. It was possible, if tension was applied to the wire on the street to the extent of causing it to break, that the loosened part might fly backward.
The negligence alleged in the declaration was that the wire was unprotected upon the street surface; barriers were not erected; that air pressure was so operated as to pull the wire from the street surface so suddenly as to snap and break the wire. The wire did break at or near the manhole but what caused the break was undisclosed. There was no evidence of any tension causing the break.
At the trial plaintiff called an employee of defendant who was on the job as inspector and he testified that the wire seldom breaks and "Only — the only way I can tell you about the wire breaking is when you pull it back, you sometimes break the wire pulling this gopher back * * * by hand, * * * we would wrap the wire around a stick and pull it and sometimes it will pull in two. It would just break and fall in the trench. * * * There is no pressure on the wire when you are pulling it back."
It is manifest that the accident was not occasioned in such a way.
The witness was then asked:
"Supposing this wire was being pushed through, Mr. Cochrane, at 120 pounds pressure and an automobile stopped on it or ran over the wire, wouldn't that be likely to snag it?"
He answered: "Yes, sir."
Thereupon counsel for defendant asked that the testimony be stricken out on the ground there was no evidence of a truck or car crossing the wire as it was lying on the pavement. Counsel for plaintiff stated: *Page 128
"There will not be, that is a ground of legitimate inference under our theory where the instrumentality was entirely within the control of the defendants, and this man is an expert in this business and is representing the defendant, and I have a right to ask him about all reasonable possibilities."
The court struck the testimony out and was not in error in doing so for no such cause of the break of the wire was alleged or proved by plaintiff.
Plaintiff was required to allege and prove actionable negligence on the part of defendant and that such negligence was the proximate cause of the injuries he received.
The evidence failed to point out any particular cause for the pieces of wire, if from defendant's operation, breaking, flying, and striking plaintiff.
We cannot employ the thought advanced by counsel for plaintiff that:
"In cases of this nature, where the precise cause of the accident is unknown, any theory susceptible of logical inference of negligence developed on the trial may be submitted to the jury whether alleged or not."
Plaintiff's case, if any, rested upon the most liberal employment of the doctrine res ipsa loquitur. That doctrine does not obtain in this jurisdiction. Collar v. Maycroft,274 Mich. 376. In that case we said:
"The burden of establishing his right to recover was upon plaintiff. Benedict v. Rinna, 257 Mich. 349. Negligence will not be presumed. Kerr v. City of Detroit, 255 Mich. 446. The doctrine of res ipsa loquitur does not prevail in this State.Eaton v. Consumers Power Co., 256 Mich. 549. * * *
" 'Negligence cannot be presumed. It must be alleged, and affirmatively shown. A presumption of negligence cannot be raised without foundation, and the mere fact that an injury occurred is no *Page 129 evidence of fault on the part of defendant.' Perry v. RailroadCo., 108 Mich. 130.
" 'In effect, the plaintiff relies simply upon the happening of the accident to sustain her claim of negligence on the part of the defendant. That the mere fact of an accident occurring is no evidence of negligence is well established in this State. We have very recently considered this phase of the law inElsey v. J. L. Hudson Co., 189 Mich. 135 (L.R.A. 1916 B, 1284), and numerous decisions are there cited.' Fuller v.Wurzburg Dry Goods Co., 192 Mich. 447."
Counsel for plaintiff in his brief states:
"Isn't it logical to assume with all the known facts proved in this record, that the accident happened exactly in the manner claimed by the plaintiff? It is certain, under the evidence, that the wire was stopped back of the manhole and while it was moving. This is the only manner in which the accident could have happened."
The record fails to show any stoppage of the wire back of the manhole while it was moving. Plaintiff failed to show negligence on the part of defendant as the proximate cause of the injuries he received, and the court was not in error in so holding.
The judgment is affirmed, with costs to defendant.
SHARPE, C.J., and BOYLES, CHANDLER, and NORTH, JJ., concurred with WIEST, J.