BUNKER v. BUNKER. wards omitted from his account reported in obedience to an order requiring a new account to be taken and stated. To this omission plaintiffs excepted, and if it be conceded that the exception was directed only to the failure of the referee to charge the former allowance upon the rents and profits, and this seems to be so, it nevertheless appears that the plaintiffs permitted what is in form and substance a final judgment to be rendered, which did not in terms include this allowance, but provided on the contrary that plaintiffs should only recover a certain sum and the costs of the action, which necessarily excluded from the judgment the recovery of the costs paid in the suit of Jones v. Bunker. That this was a final judgment there can be no doubt. It possessed all of the elements and characteristics of such a judgment. It decided the case upon its merits, without any reservation for other and future directions of the court, so that it was not necessary to bring the case again before the court; and when it was pronounced, the cause was at an end and no further hearing could be had. Flemming v. Roberts, 84 N. C., 532; McLaurin v. McLaurin, 106 N. C., 331. All discussion of questions involved in that suit is shut out by the judgment. This ruling applies with equal force, we think, to the other branch of the order which required the referee to take an account of the rents and profits received since March, 1897. By the very terms of the judgment, the account was closed to the day of its rendition and no other or further accounting could be ordered in respect to matters not included in that suit. Such relief must be sought in a new and independent action. The judgment was rendered at November Term, 1900. No exception was entered and no appeal taken, but the amount recovered and the costs were paid. When this was all done by and with the acquiescence of the plaintiffs, the vitality of that suit and of the judgment therein was fully spent and the latter could not be re-opened and the suit revived by any sort of proceeding known to the law. LYLES v. CARBONATING CO. The court erred in making the order and the case is remanded with directions to set it aside and to deny plaintiffs' motion. Reversed. LYLES v. CARBONATING CO. (Filed November 22, 1905). Res Ipsa Loquitur-Effect-Prayer for Instruction. 1. The doctrine of res ipsa loquitur does not dispense with the rule that he who alleges negligence must prove it. It is simply a mode of proving negligence and does not change the burden of proof. 2. An exception that the court failed to explain fully to the jury the doctrine of res ipsa loquitur cannot be sustained, where the appellant failed to hand up a prayer for instruction to that effect. ACTION by Jarvis Lyles, Administrator, against Brannon Carbonating Co., for the alleged negligent killing of the plaintiff's son, Charles Lyles, heard by Judge C. M. Cooke and a jury, at the October Term, 1905, of the Superior Court of MECKLENBURG. The following issue was submitted: "Was the death of the plaintiff's intestate caused by the negligence of the defendant as alleged in the complaint?" The jury answered it, "no." From a judgment dismissing the action, the plaintiff appealed. Stewart & McRae for the plaintiff. Burwell & Cansler and T. C. Guthrie for the defendant. BROWN, J. The evidence discloses that the plaintiff's intestate was killed by the explosion of a soda water tank made of copper and lined with block tin, which was being charged with gas at the bottling works of the defendant in Charlotte. LYLES v. CARBONATING CO. The tank did not belong to the defendant, but had been borrowed by it on the same day, and an hour or so before the explosion, from the Charlotte Drug Co., of which W. M. Wilson was the president, the loan having been made by said Wilson. No negligence is alleged in the complaint as to the manner of charging the tank or in respect to the actions of the servants of the defendant, upon whom devolved the duty of receiving, examining and charging the tank. The negligence alleged in the complaint consisted solely in using a defective tank. There are several exceptions in the record relating to the admission and rejection of evidence. We have examined them carefully, and think they are without merit. Mr. McRae, the counsel for the plaintiff, in an able argument, rested his main contention upon two alleged errors in the charge of the court: 1. Because His Honor erred in instructing the jury that the burden of proof upon the issue was on the plaintiff. 2. Because His Honor in his charge failed to explain fully to the jury the doctrine of res ipsa loquitur. It has never been decided in this State that where the principle of res ipsa loquitur applied, its effect was to shift the burden of proof upon the issue of negligence. In an action for damages for death by wrongful act, the burden is on the plaintiff upon the issues of negligence and damages. (the only issues in this case), and if an accident happened out of the ordinary, our court has never said that this circumstance established the plaintiff's case and shifted the burden of proof upon the issue over to the defendant. In those cases where the doctrine is applied, this court regards as purely evidential, and the inference to be drawn from the fact of the accident is some evidence which the court. permits to go to the jury upon the question of negligence, and the plaintiff is not required to prove the actual facts showing the particulars wherein the defendant was negli LYLES v. CARBONATING CO. gent, but there is no presumption raised whereby the burden of proof is shifted. Res ipsa loquitur does not dispense with the rule that he who alleges negligence must prove it. It is simply a mode of proving negligence and does not change the burden of proof. Labatt Master & Servant, section 834; Womble v. Grocery Co., 135 N. C., 481; Stewart v. Carpet Co., 138 N. C., 67. In the latter case Mr. Justice Walker says: "The law attaches no special weight as proof to the fact of an accident, but holds it to be sufficient for the consideration of a jury, even in the absence of any additional evidence." We think the jury had before them all the circumstances connected with the accident, and doubtless gave them such weight as they thought proper, and they seem to have drawn from the fact of an accident no inference of negligence. As to the other contention of the plaintiff, we think it cannot be sustained. The doctrine that "the thing speaks for itself," relates solely to the evidence which may go to the jury as some proof of an alleged fact. It was therefore the plaintiff's duty, if he desired the court to charge upon this phase of the evidence more particularly, to hand up a prayer for instructions to that effect. This the plaintiff failed to do. He cannot now be heard to complain for the alleged omission of His Honor to charge upon that particular feature of the evidence, which the plaintiff himself did not regard of sufficient importance to call attention to by appropriate prayers for instruction. The charge of the able and careful judge who presided in the court below has been closely examined. It appears to us to fully cover the controversy and to be a very clear and correct summing up of the contentions of the parties and the law applicable to the case. We find no error in it. The judgment is Affirmed. In re STEWART. IN RE STEWART. (Filed November 22, 1905). Year's Allowance-Widow-Children Under 15 Years of Age. In a proceeding for an allowment of year's allowance, under Revisal, sections 3091-5, the widow, who declined to take two children, by a former marriage, under 15 years of age, and keep them for one year and apply a portion of the money received as her allowance to their support, is entitled to only $300, and not an additional $100 for each of the children. APPLICATION for year's allowance for Irene E. Stewart, widow of Frank P. Stewart, instituted before a justice of the peace. From the finding of the commissioners there was an appeal to the Superior Court, and from the ruling of the clerk an appeal was taken to the judge at term, and heard by Judge Charles M. Cooke, at May Term, 1905, of the Superior Court of STOKES. The matter was heard upon an agreed statement of facts, of which the following are material to a decision of the case: Frank P. Stewart died testate on November 1, 1904, leaving an estate of the value of $3,490, all of which he bequeathed to Maud S. Haywood, his eldest child. W. W. Haywood, husband of the legatee, qualified as administrator cum testamento annexo on November 16, 1904, and took possession of the decedent's estate. At that time the widow, Irene Stewart, was ill at the home of her mother in Sampson County. On December 2, 1904, she dissented from the will of her husband, and on December 28 of the same year, applied for her year's allowance. At the time of the death of Frank P. Stewart, there lived with him two of his children by a former marriage, George B. and Frank P. Stewart, Jr., both under 15 years of age. While the widow was at the home of her mother, these two children were carried by the administrator to his home in |