(dissenting).
In my view, the trial judge correctly directed a verdict for the defendant for the reasons stated by him. The plaintiff failed to prove any negligent act or omission on the part of the defendant and the doctrine of res ipsa loquitur does not help him. My colleagues state in their opinion:
“ * * * On cross-examination the plaintiff indicated that he had upon awakening ‘grabbed’ or ‘touched’ the steering wheel with both hands ‘in a normal driving fashion,’ that he ‘was making an effort’ to steer and ‘get the car back in control.’ He admitted that the car could then have been on the highway, and that ‘I assume it was,’ but stated that he didn’t actually know where it was.”
A sleeping passenger in a car traveling at turnpike speed who awoke and grabbed the steering wheel cannot consistently say the accident which followed immediately would not have happened if the driver had not been negligent. Nor can he say the automobile was under the exclusive control of the driver. Hence, res ipsa is not applicable.
It follows that the plaintiff’s failure to prove any negligent act or omission on the part of the defendant and his own admissions on cross-examination made it clear that a verdict should have been, as it was, directed for the defendant. The majority say:
“Authority is overwhelming for the proposition that where an automobile leaves, the highway and collides with a stationary object off the road, causing injury to a passenger, negligence on the part of the driver may be presumed or inferred (1) if the driver exclusively controlled the operation of the car, (2) if the accident would not ordinarily have happened unless the driver in control had failed to use due care, and (3) if the cause of the accident is not otherwise explained or shown. See Annotation: ‘Applicability of res ipsa loquitur doctrine where motor vehicle leaves road,’ 79 A.L.R. 2d 6 (1961) * * * ”
The A.L.R. annotation cited in support, of this statement shows that the authority therefor is not overwhelming; indeed the annotation points out that there are different lines of authority. But even under the Pennsylvania rule as stated by the majority, there could be no inference here that appellee was negligent because (a) the driver did not have exclusive control of the operation of the car, and (b) the cause of the accident is “otherwise explained or shown,”. — that is, by appellant’s admitted interference with appellee’s driving.
After describing what they say is the Pennsylvania rule of res ipsa, the majority add, “We think the same rule should' apply in this jurisdiction” and so infer that the District of Columbia rule should be changed. In Washington Loan &. Trust Co. v. Hickey,1 Judge Edgerton succinctly defined res ipsa loquitur by saying:
“ * * * The principle in question is simply that when the cause of an accident is (1) known, (2) in the defendant’s control, and (3) unlikely to do harm unless the person in control is negligent, the defendant’s negligence may be inferred without additional evidence. * *”
I think this definition is satisfactory.
In Brown v. Capital Transit Co.2 this court said:
“Where the res ipsa loquitur doctrine is applicable, it means no more than that the party claiming damages has produced proof of a fact, or a *157series of related facts, which warrant the inference of negligence, not that they compel such an inference. The rule is so stated by the Supreme Court in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815. Where, as here, it is a matter of surmise that the damage was due to a cause for which the defendant is liable, the doctrine is inapplicable. If causes other than the negligence of the defendant might have produced the accident, the plaintiff is bound to exclude the operation of such causes by a fair preponderance of the evidence. Here the sum and substance of appellant’s evidence is that an injury occurred.”
In this case also, the sum and substance of appellant’s evidence is that an accident occurred.
The majority admit that “the law of the District of Columbia controls as to whether there is sufficient evidence to take the case to the jury,” as we said in the much cited case of Tobin v. Pennsylvania R. Co.” 3
“The law applicable to the case, so far as it concerns the standard of conduct required of the parties, is the law of the place of injury, hence, the law of Pennsylvania; but the application of the standard must be made according to the law of the forum for that is a procedural matter. Consequently, the question whether there is sufficient evidence to take the case to the jury must be determined according to the law of the District of Columbia.” (Emphasis added.)
To be sure, the standard of conduct is that required by the law of the place of injury; but our rule has been heretofore that application of the standard, that is, whether the evidence shows the defendant violated it and so was negligent, is governed by the rule of the forum. So, a defendant’s motion for a directed verdict in an action based on negligence must be granted if, on the evidence, no reasonable men could reach a verdict for the plaintiff. In this respect, we said in theTobin case:4
“ * * * [A] mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element, the motion [for a directed verdict] should be granted.”
As proof was admittedly absent, the jury could only have speculated that defendant was negligent and so was liable. My understanding has always been that such speculation is not permitted. I would affirm.
. 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679 (1943).
. 75 U.S.App.D.C. 337, 338, 127 F.2d 329, 330 (1942).
. 69 App.D.C. 262, 263, 100 F.2d 435, 436 (1938), cert. denied 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939).
. 69 App.D.C. at 263, 100 F.2d at 436.