Husketh v. Convenient Systems, Inc.

HEDRICK, Judge.

Plaintiff contends that the trial court erred in directing a verdict for defendant. When all plaintiff’s evidence, including that excluded by the court as being corroborative only, is considered in the light most favorable to plaintiff, it is insufficient in our opinion to raise an inference of actionable negligence on the part of defendant.

The plaintiff argues that the defendant was negligent in failing to inspect the stool from which she fell, and in failing to correct or warn of an alleged defect which caused the accident. While the evidence discloses that two of the stools were loose on their pedestals at an earlier time, there is no evidence whatsoever of any defect existing prior to the accident in the stool from which the plaintiff fell. Plaintiff’s testimony that when she sat upon the stool “it flipped me backwards onto the floor” and *210that “[a]fter I landed on the floor, the top of the seat hung at an angle on the pedestal,” without more, is not sufficient to raise an inference as to the nature of a defect, if any, in the stool prior to plaintiff’s sitting upon it; and thus, no inference is raised that a reasonable inspection by the defendant would have disclosed any defect. Accordingly, there is no evidence in this record from which a jury could find that the defendant was negligent in failing to inspect the stool or in failing to correct or warn of an alleged defect which caused the accident.

Plaintiff urges that the doctrine of res ipsa loquitur is applicable to the facts of this case. In order to invoke the aid of this doctrine, the plaintiff must show “(1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.” Jackson v. Gin Co., 255 N.C. 194, 197, 120 S.E. 2d 540, 542 (1961). Plaintiff relies upon Schueler v. Good Friend Corp., 231 N.C. 416, 57 S.E. 2d 324 (1950), to support this contention. In Schueler a tier of chairs overturned causing the plaintiff’s injuries. There was evidence that the chairs were uniquely constructed in that the tops were larger than the bases causing them to be top-heavy and requiring that they be bolted to the floor in order to remain upright. Furthermore, the plaintiff’s evidence in Schueler disclosed that a week before the occurrence the tier of seats had been secured to the floor. Thus, there was evidence available from which an inference could be drawn as to why the seat fell when plaintiff sat upon it. From this evidence the court concluded that “ ‘the accident presumably would not have happened if due care had been exercised.’ ” Schueler v. Good Friend Corp., supra at 418, 57 S.E. 2d at 325. We cannot come to the same conclusion in the present case.

The case of Smith v. McClung, 201 N.C. 648, 161 S.E. 91 (1931), provides a more fitting analogy in terms of the quantum of evidence presented. In that case while the defendant dentist was injecting novocaine into the gum of the plaintiff, the point of the needle broke off causing injury to plaintiff. The case was submitted to the jury which found the defendant negligent. On appeal the Supreme Court reversed the trial court’s denial of defendant’s motion for nonsuit. In holding that the doctrine of res ipsa loquitur was inapplicable the Court reasoned: “There is nothing *211tending to indicate there was any defect in the needle or that if any defect existed the same could have been discovered by the most rigid inspection.” Smith v. McClung, supra at 652, 161 S.E. at 93. The Court’s observation in Smith is equally applicable to the present case. The plaintiff’s case is devoid of any evidence that there was any defect in the stool or that, if any defect existed, it could have been discovered by a reasonable inspection.

In Springs v. Doll, 197 N.C. 240, 242, 148 S.E. 251, 253 (1929), the Supreme Court stated that the doctrine would not apply “where the existence of negligent default is not the more reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture ...” See also Lane v. Dorney, 250 N.C. 15, 108 S.E. 2d 55 (1959), rev’d on other grounds on rehearing, 252 N.C. 90, 113 S.E. 2d 33 (1960). The only evidence furnished by the plaintiff tends to show that an accident occurred and that the top of the stool was at an angle to the pedestal after the accident. From this evidence we cannot say that the defendant’s negligence was the more probable cause of plaintiff’s fall from the stool. The doctrine of res ipsa loquitur is inapplicable to the facts of this case.

The judgment directing a verdict for the defendant is affirmed.

Affirmed.

Judge BRITT concurs. Judge Webb dissents.