Warren v. Jeffries

263 N.C. 531, 139 S.E.2d 718 (1965)

 

RULE:

Evidence to the effect that five children got into the rear seat of defendant's car, which had been parked in the yard by defendant, and that when the fifth child, the six-year old intestate, got in and closed the door something clicked in the front and the car started rolling, without any evidence that defendant failed to set the hand brake, or failed to engage the transmission, or neglected to maintain adequate brakes, held insufficient to overrule nonsuit, the doctrine of res ipsa loquitur not being applicable.

FACTS:

The owner's car was left standing on an incline at the home of the decedent, a 6-year-old child. The owner gave the child's mother the keys to his car so that she could drive it to a store. While the mother was in the house, five children, including the decedent, got in the rear seat of the car. They did not touch any of the control mechanisms of the car. The decedent was the last to get in and when he closed the door something clicked in the front and the car started rolling backward in the direction of a large ditch. One of the older children opened the door and told the others to jump out. When the decedent jumped out he fell, and the front wheel ran over his chest. The administratrix alleged that the owner was negligent in that he failed to set the hand brake, failed to engage the transmission, and failed to maintain adequate brakes. There was no evidence as to the condition of the brakes, whether the hand brake had been set, or whether the car was in gear. 

ISSUE:

 Is the doctrine of res ipsa loquitur applicable to the case at bar?

ANSWER:

No.

CONCLUSION:

There is no evidence as to the condition of the brakes, whether the hand brake had been set, or whether the car was in gear. Apparently the car was not examined after the accident. What caused it to make a "clicking" sound and begin rolling backwards is pure speculation. The doctrine of res ipsa loquitur is not applicable.

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