Opinion
No. 43013.
April 13, 1964.
1. Negligence — res ipsa loquitur — strictly limited — cautiously applied.
Doctrine of res ipsa loquitur should be strictly limited and cautiously applied.
2. Negligence — res ipsa loquitur — for doctrine to be applicable.
For doctrine of res ipsa loquitur to be applicable, accident must be of type not ordinarily occurring in absence of negligence, must be caused by agency or instrumentality exclusively controlled by defendant, and must not have been due to plaintiff's involuntary action, and plaintiff must not be in position to show particular circumstances causing agency or instrumentality to operate to his injury.
3. Negligence — injury to workman when building collapsed — res ipsa loquitur — doctrine not applicable.
Worker who was injured when building collapsed while he was working on it was in position to show particular circumstances causing offending agency or instrumentality to operate to worker's injury, and without such a showing, doctrine of res ipsa loquitur was not applicable against building owner.
Headnotes as approved by Patterson, J.
APPEAL from the Circuit Court of Chickasaw County; WALTER M. O'BARR, J.
Jeff Busby, Houston, for appellant.
I. Vardaman Manufacturing Company, Inc., and J.L. Kendall were negligent, which negligence contributed to and caused the injury and damage suffered by appellant by the building which collapsed and fell, in that they did not furnish him a safe place to work.
II. The doctrine of res ipsa loquitur applies in this case. Ballenger v. Vicksburg Hardwood Co., 238 Miss. 654, 119 So.2d 778; Bloch v. Brown, 201 Miss. 653, 29 So.2d 665; Johnson v. Coca-Cola Bottling Co., 239 Miss. 759, 125 So.2d 537.
III. Defendants were negligent in not having architectural plans for the building, approved by competent architect. Burke v. Ireland, 166 N.Y. 305, 59 N.E.2d 914; Looker v. Gulf Coast Fair (Ala.), 81 So. 832; Wilkinson v. Detroit Steel Spring Works, 73 Mich. 405, 41 N.W. 490; Sec. 8638, Code 1942.
Armis E. Hawkins, Houston; Paul M. Moore, Calhoun City; Daniel, Coker Horton, Jackson, for appellees.
I. The case of Rosie May v. Vardaman Manufacturing Company, Inc., 244 Miss. 261, 142 So.2d 18, is controlling in this case. May v. Vardaman Manufacturing Co., 244 Miss. 261, 142 So.2d 18.
II. Even if Vardaman Manufacturing Company furnished the plans to Kendall, the evidence, considered in a light most favorable to the plaintiff was insufficient to create an issue for the jury. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Whatley v. Delta Brokerage Warehouse Co., 248 Miss. 416, 159 So.2d 634; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; 38 Am. Jur., Negligence, Sec. 295.
The injury of the appellant in this case arose out of the same accident which resulted in the death of Eben May for which suit was brought and which is reported in May v. Vardaman Manufacturing Co., Inc., et al., 244 Miss. 261, 142 So.2d 18. Since the evidence in that case failed to show negligence on the part of the defendant Manufacturing Company, the trial court directed a verdict for it. The court's action in so doing was affirmed by this Court in the above styled cause.
On the facts, these two cases are substantially the same. In the present appeal the appellant simply failed to prove that the appellee was guilty of any negligence which proximately caused or contributed to the injury on the occasion of the collapse of the building. The appellant contends, however, that since it is undisputed the building on which appellant was working collapsed thus causing his injury that the doctrine of res ipsa loquitur should apply. (Hn 1) This Court has heretofore held that the doctrine of res ipsa loquitur should be strictly limited and cautiously applied. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J.C. Penny Co. v. Evans, 172 Miss. 900, 160 So. 779, (Hn 2) and as set forth in 38 Am. Jur., Sec. 295, the following conditions precedent to the application of the rule are required:
". . . (1) The accident must be of the kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or an instrumentality within the exclusive control of the defendant; (3) It must not have been due to any involuntary action on the part of the plaintiff; and (4) plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury."
(Hn 3) It is obvious here that the appellant was in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury. This he failed to do. We are of the opinion therefore, that the doctrine of res ipsa loquitur is not applicable and the trial court properly refused to submit the case to the jury on that theory.
For the foregoing reasons the judgment of the circuit court is hereby affirmed.
Affirmed.
Lee, C.J., and Ethridge, Gillespie, and Brady, JJ., concur.