Snow v. Duke Power Co. , 39 N.C. App. 350 ( 1979 )

CLARK, Judge.

Defendant contends that the plaintiffs presented insufficient evidence of causation and of defendant’s negligence to submit the issue to the jury.

Ordinarily, there is no direct evidence of the cause of a fire, and therefore, causation must be established by circumstantial evidence. See, Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425 (1920). “The cause of the fire is not required to be shown by direct and positive proof. ... It may ... be inferred from circumstances. ... It is true that there must be a causal connection between the fire and its supposed origin, but this may be shown by reasonable inference from the admitted or known facts. . . .” Simmons v. Lumber Co., 174 N.C. 221, 225, 93 S.E. 736, 738 (1917). The evidence must show that the more reasonable probability is that the fire was caused by the defendant, or an instrumentality solely within his control. See, Collins v. Furniture Co., 16 N.C. App. 690, 193 S.E. 2d 284 (1972). Simmons v. Lumber Co., supra.

In the case sub judice, plaintiffs’ evidence, taken in the light most favorable to them, tends to show that the defendant removed the meter from the meter box several weeks before the fire, that the fire started above the meter box, and that the wires leading to the barn had electricity flowing through them the day after the fire.

In Maharias v. Storage Co., 257 N.C. 767, 127 S.E. 2d 548 (1962), the plaintiff presented evidence that rags soaked with furniture polish were found in the room where a fire originated. The fire had spread from defendant’s warehouse to plaintiff’s building. The court held that the evidence of defendant’s negligence was insufficient to reach the jury since the cause of the fire was “mere conjecture, surmise and speculation.”

In Phelps v. Winston-Salem, 272 N.C. 24, 157 S.E. 2d 719 (1967), a fire started in a public market, near a stove which had cracks in it. There were also combustible materials stored nearby. The court, quoting Moore v. R.R., 173 N.C. 311, 92 S.E. 1 (1917), stated “ ‘[T]here must be more than bare evidence of a possibility, or even a probability, that the fire was so caused.’ ” 272 N.C. at 30, 157 S.E. 2d at 723. See, Maguire v. R.R., 154 N.C. 384, 70 S.E. 737 (1911). Compare, Rountree v. Thompson, 226 N.C. 553, 39 S.E. 2d 523 (1946); Continental Insurance Co. v. Foard, 9 N.C. App. 630, 177 S.E. 2d 431 (1970); Mills, Inc. v. Foundry, Inc., 8 N.C. App. 521, 174 S.E. 2d 706, cert. denied 277 N.C. 111 (1970); with, Lawrence v. Power Co., 190 N.C. 664, 130 S.E. 735 (1925); Stone v. Texas Co., supra; Gaston v. Smith, 22 N.C. App. 242, 206 S.E. 2d 311, cert. denied 285 N.C. 658, 207 S.E. 2d 753 (1974); Collins v. Furniture Co., supra.

Under the standards set forth in Maharias, supra, and Phelps, supra, and the other cases cited above, we find that the plaintiffs’ evidence fails to raise more than a speculation that the fire was electrical in origin. The plaintiffs’ evidence does not negate the other possible causes of the fire.

Nor is the doctrine of res ipsa loquitur available to assist the plaintiffs in reaching the jury. Res ipsa loquitur is a rule of evidence which establishes a prima facie case of negligence. 58 Am. Jur. 2d, Negligence, § 474. In order for the rule to apply, three conditions must be met —“(1) that the accident was of a kind which does not ordinarily occur unless someone was negligent; (2) that the instrumentality or agency which caused the injury was in the exclusive control of the person charged with negligence, and (3) that the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured.” 58 Am. Jur. 2d, Negligence, § 480 at 55. See, Springs v. Doll, 197 N.C. 240, 148 S.E. 251 (1929).

The rule permits only an inference of negligence; it does not establish causation, Downs v. Longfellow Corp., 351 P. 2d 999 (Okla. 1960), and is therefore not applicable when the cause is unknown or more than one inference can be drawn as to causation. See, Kekelis v. Machine Works, 273 N.C. 439, 160 S.E. 2d 320 (1968). Therefore, the rule cannot be utilized to supply proof of the cause of the fire.

Even if we assume, arguendo, that the fire was electrical in origin, res ipsa loquitur does not apply when the plaintiff cannot establish that the instrumentality causing the damage was in the exclusive control of the defendant. Annot., 169 A.L.R. 953 (1947). Here the defendant did not possess sole control over the wiring. The plaintiff’s father testified that he had tampered with the meter box, and the defendant’s witnesses testified that the riser wire belonged to and was supplied by the customer. Therefore, the doctrine of res ipsa loquitur does not apply. Trull v. Well Co., 264 N.C. 687, 142 S.E. 2d 622 (1965); Lea v. Light Co., 246 N.C. 287, 98 S.E. 2d 9 (1957); Hopkins v. Comer, 240 N.C. 143, 81 S.E. 2d 368 (1954); Smith v. Oil Corp., 239 N.C. 360, 79 S.E. 2d 880 (1954); see, Kekelis v. Machine Works, supra.

The plaintiffs’ evidence failed to raise more than a speculation as to the cause of the fire, and the doctrine of res ipsa lo-quitur is not applicable to the facts of this case since the cause of the fire was not established and the defendant did not have exclusive control over the electrical equipment. Therefore, the trial court erred in failing to direct a verdict in favor of the defendant.

The judgment in favor of the plaintiffs is vacated and the case is remanded for entry of a directed verdict in favor of defendant.

Judges Mitchell and Webb concur.