(dissenting).
I respectfully dissent for the following reasons: For the doctrine of res ipsa loquitur to apply two elements must be present: “(1) that the accident be of the kind which ordinarily does not occur in the absence of someone’s negligence; (2) that it must be caused by an agency or instrumentality within the exclusive control and management of defendant.” Renfro v. J. D. Coggins Company, supra. I do not believe that either of these elements are present in this situation.
After the two men maneuvered the crate onto the skids and assumed positions on either side of the crate the plaintiff testified that the crate inexplicably moved pushing him off the loading dock. Mr. Hill testified that after the crate had moved about 2i/¿ feet he “felt a surge” and the crate turned and that he threw his shoulder against it to keep it on the skids. The crate did not fall off of the skids and ended up on the loading dock.
Plaintiff alleged in his complaint that it was “either through the negligent and inadequate preparation made for off-loading by Hill, or by Hill’s negligent release of the crate, the crate and motor got out of control, and knocked plaintiff from the Defendant’s dock.”
It is possible that the crate turned because the plaintiff did not push to keep it straight. Or it may have turned because one part of the skids was smoother or more slippery than another. He testified that he had just reached up and had his finger tips on the crate when it started to move. He also said that he had done “no pushing at all”. He may have become momentarily frightened and forgot to push. There was no evidence that Mr. Hill had released the crate. As to the preparations that had been made for offloading, it is true that it was Mr. Hill’s plan or method that was used. However, the plaintiff was a veteran of 35 years experience as a truck driver with considerable experience in unloading freight. He did not express any fears or apprehensions that this was an unsafe way to unload the crate. Furthermore, the crate did not fall off of the skids. It slid down as planned and ended up on the dock. There was no evidence that this was an unsafe method. Mr. Hill testified that this was a method he had used many times over many years and had never had an accident. The plaintiff acknowledged that he had seen it used.
It is the probability of negligence of the defendant that is the rationale for the doctrine of res ipsa loquitur. In other words, the doctrine is only applicable when negligence on the part of the defendant is the only reasonable inference that can be drawn from the circumstances, although it is not capable of direct proof. The doctrine is not applicable where it is equally possible to infer that the accident occurred due to fault for which the defendant is not liable.
It is important to keep in mind that it was the plaintiff’s responsibility to unload the crate and that Mr. Hill was trying to help him and that one had as much physical control over the crate as the other. This accident could have occurred because the plaintiff failed to push to keep the crate from turning or because one plank which formed the skids was smoother than another. It is my opinion that the trial court did not err in refusing to instruct on the doctrine of res ipsa loquitur.