JONES
v.
OTIS ELEVATOR CO.
No. 388.
Supreme Court of North Carolina.
November 21, 1951.*495 Jones, Reed & Griffin, Kinston, for plaintiff-appellant.
Whitaker & Jeffress, Kinston, for defendant-appellee.
DENNY, Justice.
This is not an ordinary tort action. The liability of the defendant, if any, must flow from the negligent breach of its contract with the Medical College of Virginia. This was pointed out in the former opinion referred to herein. 231 N.C. 285, 56 S.E.2d 684. See also 12 Am.Jur. 820, et seq.; 38 Am.Jur. 664; 45 C.J. 650; 65 C.J.S., Negligence, § 4; Standard Oil Co. v. Wakefield, 102 Va. 824, 47 S.E. 830, 66 L.R.A. 792; American Oil Co. v. Nicholas, 156 Va. 1, 157 S.E. 754.
It is admitted that at the time of plaintiff's injury the defendant was under contract with the Medical College of Virginia to maintain some twenty elevators in buildings owned or controlled by the Medical College of Virginia, including the one in Memorial Hall. The defendant, however, under the terms of its contract, which is attached to and made a part of the plaintiff's complaint, expressly excluded therefrom the repair and maintenance of hoistway enclosures and hoistway doors, and door hangers on the passenger elevator in Memorial Hall.
The plaintiff alleges in her complaint, among other things, (1) that the defendant unlawfully, wrongfully, and negligently, failed to maintain lights on each floor of Memorial Hall at the point where the elevator well was located, and particularly on the third floor of the building; and (2) that the defendant unlawfully, and wrongfully violated its contract with the Medical College of Virginia in that it failed to maintain the elevator and the door closures and the electric interlocks attached thereto in proper repair so as to prevent one from opening the door to the elevator well when the cage or carriage was not at that floor.
We find nothing in the contract between the defendant and the Medical College of Virginia that required or permitted the defendant to have any control or supervision over the hallways of Memorial Hall, or the lighting facilities therein. And the plaintiff offered no evidence in support of her allegations in this respect. Moreover, there was evidence in the trial below to the effect that ample facilities had been provided for adequate light, but that the plaintiff and Mrs. Hoffman and Mrs. Epps made it a practice to turn out the light near the elevator entrance and the light in the elevator in order that no other person on the hall would observe its presence. Mrs. Epps testified, "We turned the lights out so people couldn't see the elevator was there and when we came to use the elevator we stepped right in without putting a light on."
As we construe the allegations of the complaint in the light of the status existing between the plaintiff and defendant, the defendant was not guilty of actionable negligence unless it negligently breached the legal duty arising out of its contract relation with the Medical College of Virginia to exercise ordinary care to keep the safety devices on the elevator in a reasonably safe condition and in proper repair, and such negligent breach of duty was the proximate cause, or one of the proximate causes, of plaintiff's injury.
The plaintiff is relying on the doctrine of res ipsa loquitur, citing Haag v. Harris, 4 Cal.2d 108, 48 P.2d 1; Gustavson v. Thomas, 227 App.Div. 303, 237 N.Y.S. 479; Class v. Young Women's C. A., 47 Ohio App. 128, 191 N.E. 102; Cramer v. Mergard, 56 Ohio App. 493, 11 N.E.2d 108; Moohr v. Victoria Inv. Co., 144 Wash. 387, 258 P. 43 *496 These cases, however, involved automatic elevators and are not controlling upon a factual situation such as that before us.
The plaintiff sustained her injuries in the State of Virginia and the substantive rights of the parties are governed by the law of that State. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126.
In the case of Peters v. Lynchburg Light & Traction Co., 108 Va. 333, 61 S.E. 745, 746, 22 L.R.A.,N.S., 1188, in applying the doctrine of res ipsa loquitur, the court stated: "The doctrine rests upon the assumption that the thing which causes the injury is under the exclusive management of the defendant, and the evidence of the true cause of the accident is accessible to the defendant and inaccessible to the person injured. Ross v. Double Shoals Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L.R.A., N.S., 298."
In City of Richmond v. Hood Rubber Products Co., 168 Va. 11, 190 S.E. 95, 98, in considering the question of res ipsa loquitur, the court said: "In Virginia the doctrine, if not entirely abolished, has been limited and restricted to a very material extent. See Chesapeake & O. Ry. Co. v. Tanner, 165 Va. 406, 182 S.E. 239, and Virginia Electric & Power Co. v. Lowry, 166 Va. 207, 184 S.E. 177."
It was held in Arnold v. Wood, 173 Va. 18, 3 S.E.2d 374, 376, that the doctrine of res ipsa loquitur "does not apply in the case of an unexplained accident which may have been attributable to one of several causes, for some of which the defendant is not responsible." Seven-Up Bottling Co. v. Gretes, 182 Va. 138, 27 S.E. 2d 925.
The plaintiff alleges her injuries were proximately caused by poor lighting and the failure of the defendant to keep the elevator in proper repair. As heretofore pointed out, this defendant was not responsible for the poor lighting which existed at the time of her injury. And there is no evidence tending to show any of the safety devices on this elevator were out of order other than the fact that the elevator was in the basement of the building and the hoistway door on the third floor was partly open. But the plaintiff's evidence does tend to show that it was possible to open the hoistway door on the third floor from the outside whether the elevator was at that floor or not. This is sufficient to defeat the application of the doctrine of res ipsa loquitur.
We deem it unnecessary to consider the question of contributory negligence on the part of the plaintiff, since in our opinion no negligent breach of the contract between the defendant and the Medical College of Virginia has been established.
The judgment of the court below is
Affirmed.