{ "id": 8575523, "name": "PATRICIA KEKELIS v. WHITIN MACHINE WORKS", "name_abbreviation": "Kekelis v. Whitin Machine Works", "decision_date": "1968-04-10", "docket_number": "Case No. 684", "first_page": "439", "last_page": "446", "citations": [ { "type": "official", "cite": "273 N.C. 439" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "148 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560668 ], "opinion_index": 0, "case_paths": [ "/nc/267/0749-01" ] }, { "cite": "113 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "252 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618666 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0090-01" ] }, { "cite": "139 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "263 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570786 ], "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0461-01" ] }, { "cite": "111 S.E. 8", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655925 ], "opinion_index": 0, "case_paths": [ "/nc/183/0243-01" ] }, { "cite": "3 A.L.R. 2d 1437", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 3, "pin_cites": [ { "page": "1446" }, { "page": "1446" } ], "opinion_index": 0 }, { "cite": "36 So. 2d 704", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 12030795 ], "weight": 3, "pin_cites": [ { "page": "711" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/so2d/36/0704-01" ] }, { "cite": "214 La. 145", "category": "reporters:state", "reporter": "La.", "case_ids": [ 12030795, 2991871 ], "opinion_index": 0, "case_paths": [ "/so2d/36/0704-01", "/la/214/0145-01" ] }, { "cite": "111 S.E. 177", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "183 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655892 ], "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0235-01" ] }, { "cite": "228 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3667724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/228/0233-01" ] }, { "cite": "113 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621325 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0305-01" ] }, { "cite": "117 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625319 ], "opinion_index": 0, "case_paths": [ "/nc/253/0355-01" ] }, { "cite": "83 S.E. 762", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1960, "opinion_index": 0 }, { "cite": "167 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273219 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/167/0510-01" ] }, { "cite": "148 S.E. 251", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1960, "opinion_index": 0 }, { "cite": "197 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628208 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/197/0240-01" ] }, { "cite": "79 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "239 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626608 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/239/0288-01" ] }, { "cite": "24 S.E. 2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631706 ], "opinion_index": 0, "case_paths": [ "/nc/222/0616-01" ] } ], "analysis": { "cardinality": 822, "char_count": 18122, "ocr_confidence": 0.563, "pagerank": { "raw": 5.822400721229931e-07, "percentile": 0.9515938960147869 }, "sha256": "510aa1b1e5030f6db18ff2833fe5525370cbf3870c129d1625c69e2fe9602000", "simhash": "1:ba86e9ab17079561", "word_count": 3061 }, "last_updated": "2023-07-14T20:52:42.272754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HusiaNS, J., took no part in the consideration or decision of this case." ], "parties": [ "PATRICIA KEKELIS v. WHITIN MACHINE WORKS." ], "opinions": [ { "text": "SHARP, J.\nTaken in the light most favorable to plaintiff, the evidence tends to show: On 21 September 1964, during \u201cthe first shift,\u201d defendant completed the installation of a yam-processing machine for plaintiff\u2019s employer, Burlington. Second-shift employees got \u201cthe heat leveled and creeled the yarn in.\u201d On the third shift, which began at 11:00 p.m., Burlington\u2019s fixer \u201cchecked out\u201d the machine, and it was started. The machine did not work properly; the yarn broke continuously, a condition ordinarily caused by excessive heat. About an hour later, as plaintiff went about teaching another employee to operate the machine, she received an electric shock, which injured her arm.\nOrdinarily, a defendant\u2019s negligence may not be inferred from the mere fact of an occurrence which injures a plaintiff. On the contrary, in the absence of evidence on the subject, freedom from negligence will be- presumed. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477. In this case, plaintiff\u2019s evidence is sufficient to allow the jury to find that she received an electric shock from a machine which defendant had installed between 9 and 18 hours earlier, and that the shock injured her. She has, however, offered no evidence tending to show any fault on the part of defendant. Therefore, unless\u2014 as plaintiff contends \u2014 the mere fact of injury, under the circumstances here disclosed, is evidence from which the jury may infer defendant\u2019s lack of due care, the judgment of nonsuit must be sustained. 3 Strong, N. C. Index, Negligence \u00a7 24b and c (1960).\nThe principle of res ipsa Loquitur, as generally stated in our decisions, is this: When an instrumentality which caused an injury to plaintiff is shown to be under the control and operation of the defendant, and the accident is one which, in the ordinary course of events, does not happen if those who have the management of it use the proper care, the occurrence itself is some evidence that it arose from want of care. Young v. Anchor Co., 239 N.C. 288, 79 S.E. 2d 785; Etheridge v. Etheridge, supra; Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Ridge v. R. R., 167 N.C. 510, 83 S.E. 762; 3 Strong, N. C. Index, Negligence \u00a7 5 (1960); Stansbury, N. C. Evidence \u00a7 227 (2d ed. 1963) and cases cited therein. The principle does not apply, inter alia, when more than one inference can be drawn from the evidence as to whose negligence caused the injury, Springs v. Doll, supra, or when the instrumentality causing the injury is not under the exclusive control or management of the defendant, Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E. 2d 21.\nNegligence and causation, like other facts, may, of course, be proved by circumstantial evidence. Drum v. Bisaner, 252 N.C. 305, 113 S.E. 2d 560; 3 Strong, N. C. Index, Negligence \u00a7 24c (1960). As pointed out in Restatement (Second) of Torts \u00a7 328 D (1965), \u201cWithout resort to Latin the jury may be permitted to infer, when a runaway horse is found in the street, that its owner has been negligent in looking after it; or when a driver runs down a visible pedestrian, that he has failed to keep a proper lookout. When the Latin phrase is used in such cases, nothing is added. A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant\u2019s relation to it.\u201d Id. at p. 157.\nRes ipsa loquitur (the thing speaks for itself) simply means that the facts of the occurrence itself warrant an inference of defendant\u2019s negligence, i.e., that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking. Ridge v. R. R., 167 N.C. 510, 83 S.E. 762; Sweeney v. Erving, 228 U.S. 233, 57 L. ed. 815, 33 S. Ct. 416.\nIn Harris v. Mangum, 183 N.C. 235, 237, 111 S.E. 177, 178, Adams, J., drew the following distinction \u201cbetween circumstantial evidence and the technical definition of res ipsa loquitur\u201d:\n\u201cRes ipsa loquitur, in its distinctive sense, permits negligence to be inferred from the physical cause of an accident, without the aid of circumstances pointing to the responsible human cause. Where this rule applies, evidence of the physical cause or causes of the accident is sufficient to carry the case to the jury on the bare question of negligence. But where the rule does not apply, the plaintiff must prove circumstances tending to show some fault of omission or commission on the part of the defendant in addition to those which indicate the physical cause of the accident.\u201d (Emphasis added.)\nThe rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates negligence, on the part of all others who have had control of the instrument causing the plaintiff\u2019s injury, is introduced, the court must nonsuit the case. When such evidence is introduced and the only inference-remaining is that the fault was the defendant\u2019s, the plaintiff has produced sufficient circumstantial evidence to take his case to the jury.\nThe foregoing rule was applied in Plunkett v. United Electric Service, 214 La. 145, 36 So. 2d 704, 3 A.L.R. 2d 1437. There the defendant installed a gas heater in the attic of the plaintiff\u2019s home on December 22nd. About 10:00 p.m. on December 24th, electricity was cut off when an ice storm caused wires to break. About 6:00 a.m: on December 25th, a fire started from the heating unit and caused extensive damage to the house. The plaintiff sued for damages and relied upon the doctrine of res ipsa loquitur even though, \u201cat the time of the fire, the heating unit was in plaintiff\u2019s home and under their control and management.\u201d The trial court found that the plaintiff had not tampered with the furnace since the defendant left the premises 39 hours earlier. In awarding damages, the court said that the only logical inference was that some fault on the defendant\u2019s part had caused the fire. After the plaintiff had shown freedom of fault on the part of all through whose hands the instrumentality had passed after it left the defendant, the doctrine of res ipsa loquitur then became applicable because- \u2014 the court said \u2014 it was \u201creasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed.\u201d Id. at 167, 36 So. 2d at 711, 3 A.L.R. 2d at 1446.\nAlthough in Plunkett v. United Electric Service, supra, the Louisiana court did not ipsissimis verbis make the distinction between circumstantial evidence in general and the technical rule of res ipsa loquitur, it did so in effect. The decision was that the plaintiff, by negating the responsibility of all others, had established by circumstantial evidence, in addition to the physical cause of the fire, that the negligence of the defendant alone was responsible for it. The court said:\n\u201cIt must be remembered that, in cases like this, (unlike most instances where res ipsa loquitur is invoked) the plaintiff does not obtain the benefit of the doctrine by merely showing the unusual accident and the resulting injury. On the contrary, plaintiff is required to establish with certainty that the instrumentality installed by defendant is the source of the damage; that he was without fault and that the time elapsing between the installation and the damage was such as to make it reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed.\u201d Id. at 167, 36 So. 2d at 711, 3 A.L.R. 2d at 1446.\nIn Peterson v. Power Co., 183 N.C. 243, 111 S.E. 8, plaintiff\u2019s cottage was destroyed by fire \u201can hour or two\u201d after defendant\u2019s employees had connected gas fixtures inside with the main outside. In sustaining a verdict for the plaintiff, this Court said: \u201cThere is evidence from which the jury could reasonably infer that all other causes for the fire had been eliminated, leaving none but those attributable to defendant\u2019s want of care, or that of its employees, which is the same thing.\u201d Id. at 246-47, 111 S.E. at 11.\nIn automobile accident cases, we hold that \u201c[t]he mere fact that an automobile veers off the highway is not enough to give rise to an inference of negligence.\u201d Yates v. Chappell, 263 N.C. 461, 465, 139 S.E. 2d 728, 731. When, however, a plaintiff\u2019s evidence \u201ctends to remove everything that might have influenced the movement of the car, causing it to leave the road, save and except the hands of the man at the wheel,\u201d the plaintiff has offered circumstantial evidence sufficient to take his case to the jury on the question of the driver\u2019s actionable negligence. Lane v. Dorney, 252 N.C. 90, 94, 113 S.E. 2d 33, 36; accord, Trust Co. v. Snowden, 267 N.C. 749, 148 S.E. 2d 833; Yates v. Chappell, supra.\nIn the instant case, the machine from which plaintiff received an electric shock was not under the control of defendant at the time plaintiff was injured. Sometime during the first shift, defendant had turned it over to Burlington, which had had its fixer to \u201ccheck out\u201d the machine, and its second-shift employees to get the \u201cheat leveled\u201d and the yarn \u201ccreeled in.\u201d The fact that plaintiff received a shock from the machine undoubtedly allows an inference of negligence on the part of some person, but her evidence leaves unanswered the question, whose was the fault. It is a fair inference from plaintiff\u2019s testimony that she, an instructor in the use of the machine, was operating it in a proper and customary manner. She did not, however, offer any evidence tending to negate negligence on the part of those who manipulated or worked with the machine during the few hours which elapsed between the time defendant turned the machine over to Burlington and the time plaintiff was injured. Neither the \u201cfixer\u201d who checked out the machine and started it nor the employees who \u201cgot the heat leveled and creeled the yarn in\u201d testified. Plaintiff\u2019s evidence does not disclose what these operations entailed or how they were performed.\nSince defendant had delivered the machine which caused plaintiff\u2019s injury into the hands of Burlington\u2019s employees who had thereafter exercised control over it \u2014 even though for a relatively short period \u2014 , plaintiff could not rely upon res ipsa loquitur. Having failed to produce evidence that those employees were free from fault, she was not entitled to go to the jury.\nThe judgment of nonsuit is\nAffirmed.\nHusiaNS, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "SHARP, J." } ], "attorneys": [ "Harold I. Spainhour for plaintiff appellant.", "Smith, Moore, Smith, Schell & Hunter for defendant appellee." ], "corrections": "", "head_matter": "PATRICIA KEKELIS v. WHITIN MACHINE WORKS.\n(Filed 10 April 1968.)\n1. Negligence \u00a7 21\u2014\nNegligence may not be inferred from the mere fact of an occurrence which injures a plaintiff.\n2. Negligence \u00a7 5\u2014\nThe doctrine of res ipsa loquitur applies to make an occurrence itself some evidence that it arose from want of care when an instrumentality causing an injury to the plaintiff is shown to be under the control and operation of the defendant, and the accident is one which, in the ordinary course of events, does not happen if those who have the management of it use the proper care.\nS. Same\u2014\nlies ipsa loquitur does not apply when more than one inference can be drawn from the evidence as to whose negligence caused the injury or when the instrument causing the injury is not under the exclusive control and management of the defendant.\n4. Negligence \u00a7 24c\u2014\nNegligence and causation may be proved by circumstantial evidence.\n5. Negligence \u00a7\u00a7 1, 5\u2014\nOrdinarily, a plaintiff must prove circumstances tending to show some fault of omission or commission on the part of defendant in addition to those which indicate the physical cause of an accident, but where 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.\n6. Negligence \u00a7\u00a7 24b, 24c\u2014\nThe rule of res ipsa loquitur does not apply when the facts of the occurrence merely indicate negligence by some person and do not point to defendant as the only probable tortfeasor, and in such case the action must be nonsuited unless additional evidence is introduced which eliminates negligence on the part of all others who had control of the instrument causing plaintiff\u2019s injury.\n7. Same\u2014\nEvidence of plaintiff that defendant installed a textile machine for plaintiff\u2019s employer, that other employees checked the machine and prepared it for operation, that the machine was not working properly when plaintiff began operating it, and that plaintiff received an electric shock from the machine, is held insufficient to go to the jury on the issue of defendant\u2019s negligence in installing the machine, the doctrine of res ipsa loquitur being inapplicable because the machine was not under defendant\u2019s control when plaintiff was injured, and plaintiff having failed to produce evidence that the other employees who worked with the machine were free from fault.\nHtjskins, J., took no part in the consideration or decision of this case.\nAppeal by plaintiff from Crissman, J., 17 April 1967 Civil Session of Guilfoed, docketed and argued at the Fall Term as Case No. 684.\nAction for personal injuries.\nThe material allegations of the complaint, except when quoted, are summarized as follows: In September 1964, defendant company was in the process of installing and wiring new machinery at the Burlington Throwing Company in High Point (Burlington), where plaintiff was employed. On 22 September 1964, plaintiff\u2019s supervisor assigned her to work on one of the new machines (ARCT FT-3, Model #788), which had been \u201capproved by defendant\u2019s agent as ready for operation.\" This machine had not been operated before. While instructing another employee in the operation of the machine, plaintiff activated one of the spindles by pushing it with her right hand. In doing so, \u201cshe received into her body a powerful current of electricity.\u201d In consequence, her arm turned black and blue, and she was hospitalized for approximately two weeks. The arm has continued to incapacitate and pain her. Plaintiff\u2019s injuries were proximately caused by the negligence of defendant\u2019s agents in that they (1) wired the machine improperly and carelessly; (2) pronounced the machine ready for service when it was so defective that voltage became exposed at several points where operators were likely to receive electric shock; (3) placed the machine in service without having adequately tested and inspected it to ascertain if it could be safely operated; and (4) failed to warn plaintiff of the dangerous condition of the machine about which it knew or should have known.\nAnswering, defendant admitted that it had installed the machine upon which plaintiff was working. It denied all other material allegations in the complaint and pleaded contributory negligence on the part of both plaintiff and her employer.\nAt the trial, defendant offered no evidence. Plaintiff\u2019s evidence tended to show the following facts: For two or three months prior to 22 September 1964, the date of the occurrence in question, defendant had been in the process of installing and wiring new machinery for Burlington. Seven of the new machines, which are of French manufacture, were in operation on that date. The machines are long and six feet high.- An aisle, one and a half feet wide, runs through the center of the machine and allows the operator to get to its inner portions. At the back of the aisle is a metal ramp which enables the operators to reach the higher parts of the machine. In operating the machine, fibres must be tied together at different points around the machine. These fibres, or yarn, pass through two heater blocks, which \u2014 when properly heated \u2014 \u201cfluff\u201d the yarn and give it a certain \u201cspring.\u201d The yarn is drawn through the heater blocks by a fine wire which is then attached to a rotor. Thereafter, each rotor is placed in a spindle; the operator pushes in the spindle and thus starts the yam running. The machine carries a large number of spindles in a row together. The evidence contains no picture or other information about the machine which would enable us to describe it more definitely.\nOn 21 September 1964, plaintiff reported to work on the \u201cthird shift\u201d at 11:00 p.m. Her job was to instruct new girls how to operate the new machines, and the shift supervisor assigned her and Linda Lunsford to one of the machines. This machine never had been operated before; defendant had completed its installation during the \u201cfirst shift.\u201d Employees on \u201cthe second shift had got the heat leveled and creeled the yarn in.\u201d On the third shift, a \u201cfixer,\u201d who worked for Burlington, \u201chad checked the machine out.\u201d When it was \u201cstarted up,\u201d plaintiff and Mrs. Lunsford began tying \u201ccertain ends that the operators have to tie up at different points around' the machine.\u201d They had trouble getting the \u201cpilot tubes\u201d going, and the yarn kept breaking. Such breaking is generally caused by too much heat. Because of the continuous breaking, they had tied very few ends. Shortly after 12:00, plaintiff was standing on the ramp with her right hand on one of the spindles; no other part of her body was in contact with the machine. She pushed in the spindle and, at that moment, she received a large electric shock. For a few minutes, plaintiff was unable to move; she \u201cjust hung there\u201d in a daze. When the yarn had burned out through the heater block, she jumped back and walked out of the machine. Her arm was white and cold! her fist balled up, and little streaks appeared in her arm. Plaintiff\u2019s supervisor took her to the hospital, where she remained until 6 October 1964. Since her discharge, the arm has continued to get \u201ccold,\u201d and the muscles have, on occasion, \u201cknotted up.\u201d\nAt the close of plaintiff\u2019s evidence, the court allowed defendant\u2019s motion for nonsuit. From the judgment dismissing the action, plaintiff appeals.\nHarold I. Spainhour for plaintiff appellant.\nSmith, Moore, Smith, Schell & Hunter for defendant appellee." }, "file_name": "0439-01", "first_page_order": 475, "last_page_order": 482 }