The gravamen of this application is a challenge to the correctness, as a legal proposition, of what is said by us concerning the applicability of the doctrine of "res ipsa loquitur", invoked by plaintiff, but only briefly touched upon heretofore, to the facts of the case. Our attention is directed to the following cases, which, it is asserted, are opposed to the reasoning adopted by us in rejecting the rule in the present case, to-wit: Loprestie v. Roy Motors, Inc. et al., 191 La. 239,247, 185 So. 11; Pizzitola v. Letellier Transfer Co., Inc., La.App., 167 So. 158.
In the Loprestie case, the court, in passing, said [191 La. 239, 185 So. 12]: "Not having alleged any specific act of negligence on the part of the driver of the following car, it is apparent that plaintiffs are relying upon the doctrine of res ipsa loquitur, since it is alleged that the driver of the car behind, in broad daylight, on a straight roadway, and with unobstructed view, had crashed into the rear of plaintiff's car."
The syllabus of the case (No. 4), is much broader than the body of the opinion, in saying: "Where doctrine of res ipsa loquitur applies, unproved specific allegations of negligence will be regarded as surplusage."
In the Pizzitola case, the Orleans Court of Appeal through Judge McCaleb held that, as a general allegation of negligence is merely the pleader's own conclusion of law, such an allegation was not necessary to the disclosure of a cause of action in a suit wherein this doctrine is applicable; and, further, that unproved specific allegations of negligence should be regarded as surplusage. However, it would seem that the Court, in so saying, went farther than was necessary to render a proper judgment in the case, because it finally found and held that [167 So. 159]: "It is unnecessary to engage in a further discussion of this technicality of pleading, for we find that the plaintiff here has not only alleged specific negligence on the part of defendant, but has abundantly proved it by the evidence."
The organ of this court is not convinced that what we had to say on the subject is not a correct exposition of the law applicable to the pleadings in the case and the facts. If this is not the law, then in any case where the doctrine is applicable, an injured plaintiff has two bites at the cherry. He may allege specific acts of negligence against the defendant, causing him injury, and if he fails, after effort, to prove these allegations, then he can fall back on the "res ipsa loquitur" rule, thereby throwing upon defendant the burden of overcoming the prima facie case against him, which is implied from proof of the accident out of which the injury arose.
Be this as it may, in the present case we held that plaintiff did not discharge the burden of proving his case, an undertaking he voluntarily assumed. If we delete from consideration the proof he offered in support of his allegations of negligence, leaving him nothing to stand upon but the prima facie case, effectuated by application of the rule, then defendants' *Page 566 proof in support of their theory of the cause of the accident easily overcomes the prima facie case. This result also accrues if we reinforce plaintiff's evidence in support of his charges of negligence by the res ipsa loquitur rule. The two are insufficient to make out a case in his favor when viewed and weighed in the light of the testimony adduced in opposition thereto, and the cogent inferences arising therefrom.
For these reasons, the application for rehearing is denied.