¶1concurring in part and dissenting in part. I concur with the majority opinion insofar as it holds that the doctrine of res ipsa loquitur is not applicable to the facts in these cases, which were consolidated for trial by consent. Ivey v. Rollins, 251 N.C. 345, 111 S.E. 2d 194; Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411; Pemberton v. Lewis, 235 N.C. 188, 69 S.E. 2d 512; Etheridge v. Etheridge, 222 N. C. 616, 24 S.E. 2d 477; Springs v. Doll, 197 N.C. 240, 148 S.E. 251.
¶2On the other hand, in my opinion, without applying the doctrine of res ipsa loquitur to the facts in these cases, the evidence leads only into the field of conjecture, speculation and surmise as to how and why the accident occurred. Such evidence is insufficient to carry a case to the jury. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670, and cited cases.
¶3In the last cited case, Ervin, J., speaking for the Court, said: “In an action for death by wrongful act based on negligence, the burden rests on the plaintiff to produce evidence, either direct or circumstantial, sufficient to establish the two essential elements of actionable negligence, namely: (1) That the defendant was guilty of a negligent act or omission; and (2) that such act or omission proximately caused the death of the decedent. …
¶4“To carry this burden by circumstantial evidence, the plaintiff must present facts which reasonably warrant the inference that the decedent *96was killed by the actionable negligence of the defendant. Wyrick v. Ballard Co., Inc., 224 N.C. 301, 29 S.E. 2d 900; Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78; Lynch v. Telephone Co., 204 N.C. 252, 167 S.E. 847. An inference of negligence cannot rest on conjecture or surmise. Smith v. Duke University, 219 N.C. 628, 14 S.E. 2d 643; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 611; Ham v. Fuel Co., 204 N.C. 614, 169 S.E. 180; Grimes v. Coach Co., 203 N.C. 605, 166 S.E. 599; Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329. This is necessarily so because an inference is a .permissible conclusion drawn by reason from a premise established by proof. Cogdell v. Railroad, 132 N. C. 852, 44 S.E. 618; Wollard v. Peterson, 143 Kan. 566, 56 P. 2d 476.”
¶5“Generally, a defendant’s negligence will not be presumed from the mere happening of an accident, but, on the contrary, in the absence of evidence on the question, freedom from negligence will be presumed.” Etheridge v. Etheridge, supra; Whitson v. Frances, 240 N.C. 733, 83 S.E. 2d 879; Robbins v. Crawford, 246 N.C. 622, 99 S.E. 2d 852; Williams v. McSwain, 248 N.C. 13, 102 S.E. 2d 464; Williamson v. Randall, 248 N.C. 20, 102 S.E. 2d 381; Sloan v. Light Co., 248 N.C. 125, 102 S.E. 2d 822.
¶6In Whitson v. Frances, supra,this Court said: “When, in a case such as this, the plaintiff must rely on the physical facts and other evidence which is circumstantial in nature, he must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendant.”
¶7Likewise, in the case of Williamson v. Randall, supra, Parker, J., speaking for the Court, said: “The plaintiffs, to carry their case to the jury against the defendant on the ground of actionable negligence, must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts. Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258.”
¶8Moreover, in the case now before us, the evidence of Mrs. Dorney, while negative in character, completely negatives any attendant facts, direct or circumstantial, that might explain the cause of the accident. The plaintiff’s evidence, exclusive of showing the injuries sustained, supports one fact and one fact only — the mere happening of an accident. There is no evidence tending to show any defect in the automobile, or that it was being operated at an excessive rate of speed or in any other negligent manner. Springs v. Doll, supra.This was not the case in Etheridge v. Etheridge, supra, as stated in the majority opinion, to wit: “ … the court held the plaintiff had offered evidence *97tending to support his allegations that the defendant operated ' a motor vehicle without due caution and circumspection … in a manner so as to endanger … person or property … at a speed greater than is reasonable and prudent under the conditions then existing.’ ” There is no such evidence in the present ease.
¶9The evidence before us now is the same evidence that was before us at the Fall Term 1958 (decided at the Spring Term 1959, with all members of the Court present and participating), and the points now raised were raised and forcefully argued by counsel for the plaintiffs on the original appeal, and the questions were duly and carefully considered in arriving at the decision filed on 8 April 1959. Lane v. Dorney, 250 N.C. 15, 108 S.E. 2d 55. This fact is confirmed by the dissenting opinion filed at the time the original opinion was filed. The writer of the dissenting opinion stated: “From the evidence, which is fully and fairly stated in the opinion, I draw inferences different from those expressed by the Chief Justice.”
¶10When these consolidated cases were originally before us I was of the opinion that the plaintiff had offered no evidence of sufficient probative value to warrant the submission of the cases to the jury, in the absence of the application of the doctrine of res ipsa loquitur. I am still of the same opinion.
¶11I am authorized to state that Wiriborne, C. J. and Moore, J., concur in this opinion.