At Atlanta, Georgia, about one o’clock in the morning, Mrs. Fannie Lazarus, a seasoned air traveler, boarded an Eastern Air Lines plane bound for New Orleans. The interior of the plane was dimly lighted, presumably because some of the passengers were asleep. Mrs. Lazarus immediately called for a cup of tea, which was served to her not earlier than 1:15 a. m. The stewardess put a pillow on her lap and then placed thereon a tray with a container of hot tea. Soon thereafter the tea was spilled on appellant’s person.
She sued Eastern Air Lines, alleging that “due to negligence, carelessness and recklessness of the defendant * * * the cup of hot tea was caused to tip over and fall on and against the plaintiff, who sustained severe burns as a result thereof.” At the pre-trial proceeding, Mrs. Lazarus asserted her reliance upon the doctrine of res ipsa loquitur.
Mrs. Lazarus testified that a movement of the plane upset the container of tea.1 *749She said the tea was spilled “because the plane was taking off, had been off, and gradually it made one dip way down, like that, and before I realized the tea was all over me * * *(Emphasis supplied.) At another point in the transcript of the testimony of Mrs. Lazarus, the following question and answer appear:
“Q. Now, with regard to this dipping of the plane to the left, was this — was there a bumpy motion or was this a smooth motion ? How would you describe the motion of the plane at that time? A. No, it was going along smoothly until finally I felt that going down to the left, that way, and then straightened out. * * *"
Thus, it seems clear that the inclination of the plane from a horizontal position was in a smooth movement to the left as would be made in a turn in that direction. Such a movement often occurs when the plane is being operated in a non-negligent manner.
Asked by the trial judge to particularize as to the negligence he claimed to have shown, the appellant’s attorney replied, “The negligence in the operation of the airplane in making such a steep turn at a time when a passenger had been served hot tea.” Again he gave his theory of the case as follows:
“ * * * This pilot made a very steep turn, a steep turn at a time when she was being served hot fluids. It is our contention that during such a period of time, that if a stewardess serves hot food, or any type of food, to a passenger, that the pilot should either at that time be given notice of that fact so that he may regulate his turn or, in the alternative, in the ordinary operation of the airplane the pilot should take care not to make so steep a turn as to cause possible injury to passengers.”
That is to say, according to the appellant’s theory, the pilot should take care not to make so steep a turn as to upset a cup of tea.
District Judge Alexander Holtzoff, in directing a verdict for Eastern Air Lines, summed up the situation thus:
“The Court is of the opinion that on the evidence adduced in behalf of the plaintiff on the issue of liability a prima facie case has not been made out justifying the submission of this case to the jury. There is not a scintilla of evidence here of any negligence on the part of the defendant. The plaintiff boarded the plane. She asked for a cup of tea. The stewardess complied with her request, first placing a pillow on her knees, then a tray, and then bringing her a container of tea. The airplane had been traveling smoothly and then made a slow dip to the left. The tea spilled and, unfortunately, it came in contact with the plaintiff’s body.
“It cannot be argued that the service of the tea was negligently done because there is no evidence of negligence on that score. There is no basis for drawing an inference that there was any negligence on the part of the pilot in causing the plane to dip because that is a part of airplane travel.
“Even applying the rule, as the Court is doing, that the defendant as a common carrier was charged with the highest degree of care towards the plaintiff as a passenger, there is no evidence whatever of any negligence and there is no question to submit to the jury.
“Under the circumstances, the Court will direct a verdict in favor of the defendant.”
*750On this appeal, the question is whether the story told by Mrs. Lazarus permitted the inference that the pilot had been negligent; that is to say, whether the trial judge erred in directing a verdict for Eastern Air Lines at the conclusion of the evidence for Mrs. Lazarus.
The generally recognized nature of res ipsa loquitur shows the doctrine is not applicable here, regardless of whether it be interpreted under the law of the District of Columbia or that of the jurisdiction where the tea was spilled.2
Res ipsa loquitur requires that there be no probable explanation for the occurrence except the negligence of the defendant. Slaughter v. D. C. Transit System, 1958, 104 U.S.App.D.C. 275, 261 F.2d 741. It is generally said that the incident must be of a kind which does not ordinarily occur unless someone is negligent. So, the question is whether a jury may infer that a container of tea on a tray held by a passenger on an airplane in flight will not tilt or tip over unless the pilot is negligent.
The dip of an airplane in flight which was only sharp enough to upset a cup of tea is not an incident which probably would not have happened unless the pilot had been negligent. Such an upset is a likely incident of air travel, just as it is of bus and rail travel, and may happen on a smooth flight even though the pilot has not been negligent. It is common knowledge that airplanes have not yet achieved the constant stability in flight which appellant’s theory would require that a pilot maintain on pain of being charged with negligence.
Long ago,3 this court said, “That rule of presumption [res ipsa loquitur] is always applied with caution * * * .” No cautious court would apply it in the circumstances here presented. We think Judge Holtzoff was correct in directing a verdict for the defendant.
Affirmed.
. It does not appear that any other damage was done, that any passenger was disturbed, nor that any loose object was thrown from its position, as inevitably would have happened if the plane had suddenly gone into a vertical position, as the appellant would have us believe the *749evidence showed. Against this factual background, it seems impossible that the plane dipped as steeply and as abruptly as the attorney for Mrs. Lazarus indicated when he attributed to her a manual gesture demonstrating an almost vertical position.
. The proof does not show whether that occurred in Georgia or in Alabama. Át least fifteen minutes before the cup was tilted, the New Orleans-bound plane had left Atlanta, which we were told is 50 or 60 miles from the Alabama line. Its rate of speed was not shown, but it probably was more than 200 miles an hour. Hence the record does not show in which state the- tea was spilled.
. Kight v. Metropolitan Railroad Co,. 1903, 21 App.D.C. 494, 508.