#### NONIE B. HARRIS, Administratrix of J. C. HARRIS, v. P. H. MANGUM.

(Filed 29 March, 1922.)

1. Negligence — Evidence—Res Ipsa Loquitur.

Ordinarily in an action by the plaintiff to recover damages for a personal injury alleged to bave been caused bim by tbe defendant’s negligence, be must prove circumstances tending to show some negligent fault of omission or commission in relation to a duty owed to bim by tbe defendant, in addition to tbe happening of tbe physical accident; and *236where the doctrine of res ipsa loquitur applies, it is distinctive in permitting negligence to be inferred by the jury from the physical cause of an accident, without the aid of circumstances as to the responsible human cause.

S. Same — Master and Servant — Employer and Employee — Steam Boilers.

The application of the doctrine of res ipsa loquitur does not depend upon the relationship of the parties to each other, such as, in this case, employer and employee, but in the inherent nature and character of the act causing the injury, as where the thing causing the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care; and under such circumstances a bursting of a boiler, in the absence of explanation, is evidence of negligence to be considered by the jury.

3. Same — Burden of Proof — Questions for Jury — Trials.

The prima facie ease of negligence established by the proper application of the doctrine of res ipsa loquitur, in a given case, is only evidence for the consideration of the jury, and the defendant may elect whether he will or will not introduce evidence in explanation, or in rebuttal of the plaintiff’s case.

4. Same — Instructions—Appeal and Error — Prejudicial Error.

Where there is evidence that the plaintiff, defendant’s employee, was injured by the explosion of a boiler under circumstances permitting the application of the doctrine of res ipsa loquitur, an instruction that the law raised a presumption of the defendant’s negligence that shifted to it the burden of showing that the explosion was not negligently caused, is prejudicial error, in imposing upon it the burden of disproving negligence, contrary to the rule that the burden remains on the plaintiff throughout the trial to prove by the preponderance of the evidence that the defendant’s negligence was the proximate cause of the injury alleged.

Appeal by defendant from Bond, J., at the November Term, 1921, of Wake.

Civil action for tbe recovery of damages for tbe wrongful and negligent death of plaintiff’s intestate, tried by Bond, J., and a jury, at tbe October-November term of tbe Superior Court of Wake. Tbe intestate was standing near a steam boiler used by tbe defendant in tbe operation of a sawmill wben tbe boiler exploded, causing tbe death of tbe intestate. There was evidence for plaintiff tending to show that her intestate was an employee of tbe defendant, and evidence for defendant tending to show that be was not. Tbe jury found that tbe intestate was such employee, answered tbe issue of negligence in favor of tbe plaintiff, and assessed damages.

Tbe defendant appealed.

B. N. Simms, J. H. Finlator, and R. L. McMillan for plaintiff.

Armistead Jones & Son cind H. E. Norris for defendant.

*237Adams, J.

Applying tbe doctrine of res ipsa loquitur to tbe canse of tbe intestate’s death, bis Honor instructed tbe jury as follows: “Tbe defendant having admitted that an explosion occurred, tbe law raises a presumption that tbe explosion was due to negligence, and shifts upon tbe defendant tbe burden of showing that tbe explosion was not negligently caused.” This instruction the defendant assigns as error, and in our opinion bis exception should be sustained. Tbe verdict, considered in reference to bis Honor’s charge, established as between tbe defendant and tbe intestate tbe relation of master and servant. In a large body of decisions, especially in those of tbe Federal courts, tbe maxim res ipsa loquitur is not applied in actions arising from tbe relation of master and servant, although, says Labatt, no satisfactory reason is given why in such cases it should not apply. Mas. and Ser. (2 ed.), 1601. Some of tbe courts, emphasizing tbe peculiar contract of tbe employee who ordinarily assumes tbe risks incident both to bis employment and to tbe negligence of bis fellow-servants, deny tbe applicability of tbe maxim in its strict and distinctive sense. To what extent these decisions may be affected by tbe abrogation of tbe common-law doctrine of fellow-servants in tbe enactment of tbe Federal Employers’ Liability Act is not germane to this discussion. Jones v. R. R., 176 N. C., 260. Other courts, which do not exclude tbe rule in causes between master and servant, nevertheless confine its application to a scope more limited than that which is generally recognized in tbe case of carrier and passenger. In a number of decisions rendered in this jurisdiction it is held that tbe maxim applies to causes originating in tbe relation of master and servant. Kinney v. R. R., 122 N. C., 961; Wright v. R. R., 127 N. C., 225; Womble v. Grocery Co., 135 N. C., 474; Ross v. Cotton Mills, 140 N. C., 115; Hemphill v. Lumber Co., 141 N. C., 488; Fitzgerald v. R. R., ibid., 531.

In applying tbe maxim confusion has frequently arisen from a failure to observe tbe distinction between circumstantial evidence and tbe technical definition of res ipsa loquitur. This distinction is not merely theoretical; it is practically important. Bes ipsa loquitur, in its distinctive sense, permits negligence to be inferred from tbe physical cause of an accident, without tbe aid of circumstances pointing to -tbe responsible human cause. Where this rule applies, evidence of .the physical cause or causes of tbe accident are sufficient to carry tbe case to tbe jury on tbe bare question of negligence. But where tbe rule does not apply, tbe plaintiff must prove circumstances tending to show some fault of omission or commission on tbe part of tbe defendant in addition to those which indicate tbe physical cause of tbe accident. Fitzgerald v. R. R., 6 L. R. A. (N. S.), 337, and note; Byers v. Steel Co., 16 L. R. A. (N. S.), 214, and note.

*238We are not inadvertent to decisions in which it is held that the doctrine of res ipsa loquitur does not apply in case of injury or death caused by the explosion of a boiler; but in our opinion the better reasoning, as well as eminent judicial opinion, supports its application. The principle is embedded, not in the relation existing between the parties, but in the inherent nature and character of the act causing the injury. “When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.” Scott v. London Co., 3 H. & C., 596; Shear, and Red. on Neg. (6 ed.), sec. 58 b. When in safe condition and properly managed, boilers do not usually explode; therefore, in the absence of explanation, the bursting of a boiler justly and reasonably warrants an inference of negligence. Rose v. Trans. Co., 20 Blatchf., 411; Mullen v. St. John, 15 Am. Rep., 530; Young v. Bransford, 12 Lea (Tenn.), 232; Judson v. Powder Co., 48 Cal., 146; Beall v. Seattle, 61 L. R. A., 593; Lykiardopoulo v. New Orleans, Anno. Cases, 1912 A, 976; Newton v. Texas Co., 180 N. C., 561; Stone v. Texas Co., ibid., 546. We hold, then, upon the present record, that the plaintiff had a right to invoke in aid of her action against the defendant the doctrine of res ipsa loquitur.

In our oxiinion, however, his Honor’s instruction is subject to the criticism of imposing upon the defendant the burden of disproving negligence. Furniture Co. v. Express Co., 144 N. C., 639; Stewart v. Carpet Co., 138 N. C., 61; Ross v. Cotton Mills, supra; Womble v. Grocery Co., supra; Overcash v. Electric Co., 144 N. C., 573; Page v. Mfg. Co., 180 N. C., 335. In the last of these cases Walicer, J., said: “It is true that exju’essions are to be found in some of our cases, filtered there from two or three cases based on the English rule, which justified his Honor’s charge, but since they were decided we have adhered to the true and correct rule, which is stated in Stewart v. Carpet Co., supra; Womble v. Grocery Co., supra; Cox v. R. R., supra; Shepard v. Tel. Co., supra, and many other cases, and which we have applied in this case, the substance of which is that the burden to prove his case is always on the plaintiff, whether the defendant introduces evidence or not. Where we have said It is the duty of the defendant to go forward with his proof,’ it was only meant in the sense that if he expects to win it is his duty to do so or take the risk of an adverse verdict, and not that any burden of proof rested upon him. He pleads no affirmative defense, but the general issue, and this puts the burden throughout the case on the plaintiff, who must recover, if at all, by establishing his case by the greater weight of evidence. The Supreme Court of the United States has so stated the *239rulé, and it referred with approval to our cases above cited. We say tbis much again, in tbe bope tbat tbe rule, as we bave stated it, may hereafter be considered as tbe correct one.”

For tbe purpose of calling attention to inconsistent expressions in some of tbe decisions of tbis Court we undertook at tbe last term to review tbe cases in wbicb tbe burden of tbe issue and tbe “burden of proof” are discussed. White v. Hines, 182 N. C., 215. Tbe origin of these inconsistencies may perhaps be found in tbe application against tbe defendant of tbe words “presumption” and “burden of proof.” In some of tbe decisions tbe word “presumption” seems unfortunately to imply tbe right of tbe plaintiff to recover unless tbe defendant introduces evidence in rebuttal, and to tbis extent assumes tbe burden of proof; whereas, tbe “presumption” is nothing more than evidence to be considered by tbe jury. Here tbe plaintiff could bave rested her case as to tbe first issue upon proof of tbe explosion, and her intestate’s death as tbe proximate result; and in tbat event it would bave devolved on tbe defendant to elect between introducing and declining to introduce evidence, because, although tbe maxim referred to was applicable, tbe explosion and consequent death were' only evidence from wbicb tbe jury in tbe exercise of their reason might or might not bave inferred negligence. Tbe burden of proving by tbe greater weight of tbe evidence tbe explosion, tbe death, and tbe proximate cause remained with tbe plaintiff throughout tbe trial, and tbe burden of disproving negligence was not at any time cast upon tbe defendant.

In White v. Hines, supra, 288, it is said: “When tbe plaintiff proves, for instance, tbat be has been injured by tbe fall of an elevator, or by a derailment, or by tbe collision of trains, or other like cause, tbe doctrine of res ipsa loquitur applies, and tbe plaintiff has a prima facie case of negligence for tbe consideration of tbe jury. Such prima facie case does not necessarily establish tbe plaintiff’s right to recover. Certainly, it does not change tbe burden of tbe issue. Tbe defendant may offer evidence or decline to do so at tbe peril of an adverse verdict. If tbe defendant offer evidence tbe plaintiff may introduce additional evidence, and tbe jury will then say whether upon all tbe evidence tbe plaintiff has satisfied them by its preponderance tbat be was injured by tbe negligence of tbe defendant.” . . .

“As applicable to tbis class of cases, tbe rule formulated by tbe more recent decisions of tbis Court is substantially as follows: In all instances of tbis character, after tbe plaintiff has established a prima facie case of negligence, if no other evidence is introduced, tbe jury will be fully warranted in answering tbe issue as to negligence in favor of tbe plaintiff, but will not be required to do so as a matter of law. "When such prima facie case is made, it is incumbent upon tbe defendant to *240offer proof in rebuttal of tbe plaintiff’s case, but not to tbe extent of preponderating evidence. Tbe defendant, however, is not required as a matter of law to produce evidence in rebuttal; be may decline to offer evidence at tbe peril of an adverse verdict. If be offer evidence, tbe plaintiff may introduce other evidence in reply, and tbe jury will finally determine whether tbe plaintiff is entitled by tbe greater weight of all tbe evidence to an affirmative answer to tbe issue; for throughout tbe trial tbe burden is upon tbe plaintiff to show by tbe greater weight of tbe evidence that be is entitled to such answer.”

It may not be improper to direct attention to bis Honor’s further instruction that tbe law raises a presumption that tbe explosion was due to negligence. There are decisions which apparently sustain the instruction; but again we find that certain of tbe decisions are inharmonious, if not directly conflicting. For example, it has been held that in case of derailment or tbe collision of trains, in which tbe doctrine of res ipsa loquitur applies, tbe law raises a presumption of negligence (Stewart v. R. R., 141 N. C., 277 Hemphill v. Lumber Co., ibid., 488); in others that tbe maxim does not create a presumption, but merely carries tbe question of negligence to tbe jury (Fitzgerald v. R. R., ibid., 542; Womble v. Grocery Co., supra; Ross v. Cotton Mills, supra) ; and in Qox v. R. R., 149 N. C., 118, it was held that an instruction that there was a “presumption in law of negligence” was erroneous in that it raised a legal presumption of tbe defendant’s liability and shifted tbe burden of proof to tbe defendant.

We bold that where tbe doctrine of res ipsa loquitur applies tbe plaintiff has a prima facie case of negligence; but such prima facie case is not a presumption of law, but simply evidence from which tbe jury may or 'may not infer that tbe issue should be answered in favor of tbe plaintiff. Tbe duty, then, imposed on tbe defendant is to elect between introducing or declining to introduce evidence in explanation or rebuttal.

We deem it unnecessary to consider tbe remaining exceptions.

For tbe reasons stated, tbe defendant is entitled to a new trial. Cotton Oil Co. v. R. R., ante, 95.

New trial.