It is well established in Oregon that the requirement of control by the defendant does not mean that defendant's control must have been exclusive in terms of physical possession. Gow v. Multnomah Hotel, Inc., 191 Or. 45, 55-65, 224 P.2d 552, 228 P.2d 791 (1951); Powell v. Moore, 228 Or. 255, 264-68, 364 P.2d 1094 (1961); and Denny v. Warren, 239 Or. 401, 406-07, 398 P.2d 123 (1964). According to 2 Harper and James, supra at 1085, § 19.7:
Res ipsa would properly apply if no conclusion could be drawn from the fact a cow escaped from a pasture other than that the owner was negligent. Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234 (1965); Powell v. Moore, 228 Or. 255, 265-66, 364 P.2d 1094 (1961). Cases in other jurisdictions go both ways on whether res ipsa loquitur should apply to cases involving animals on the highway.
This question was prompted by our attention to the function that the doctrine serves as discussed in Watzig v. Tobin, supra, where we pointed out that res ipsa loquitur is merely a rule of circumstantial evidence. We drew the attention of counsel to Powell v. Moore, 228 Or. 255, 269, 364 P.2d 1094 (1961), in which this court held that it is permissible to instruct the jury on res ipsa loquitur. We there said:
This is the doctrine of res ipsa loquitur. The doctrine "permits the drawing of an inference which rests upon no specific causative circumstance" as we put it in Powell v. Moore, 73 Or Adv Sh 149, 228 Or. 255, 364 P.2d 1094, 1101 (1961). The doctrine has been explained in our previous cases.
In order to proceed at trial with these inferences, a plaintiff must show: (1) an injury, (2) caused by an incident of the type which normally "does not occur in the absence of negligence," and (3) defendant was "more probably than not" responsible for the negligence that caused the injury. Hammer, 242 Or, App. at 190-91. The Oregon Supreme court has explained "res ipsa loquitur is simply a rule relating to a particular kind of circumstantial evidence . . . [and] permits the drawing of an inference which rests upon no specific causative circumstance in the case" Powell v. Moore, 228 Or. 255, 257 (1961). In Powell, plaintiff fell when defendant's loading ramp slid away from its truck.
Jurors, as men and women of the world, are expected to evaluate evidence not only in the light of their general experience, but in the light of facts generally known in the community. See Powell v. Moore, 228 Or. 255, 262-63, 364 P.2d 1094 (1961), and McCormick on Evidence 2d, 762, § 329 (1972). It is common knowledge today that many juvenile delinquents carry knives and that that problem has become so serious that ordinances and laws are enacted to prohibit the carrying of such knives.
We have made it clear that the mere fact of the plaintiff's participation in the event does not necessarily exclude the operation of the res ipsa principle. Thus in Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094 (1961), we said: "* * * [E]ven where there is some evidence that plaintiff's failure to exercise care in the use of defendant's equipment was a contributing cause producing the injury, the doctrine is not excluded as a matter of law; rather the case is to be submitted to the jury with proper instructions permitting the jury to draw the inference of defendant's negligence if it finds that plaintiff by his own conduct was not responsible for causing his injury."
As is shown above, in order to bring himself within the res ipsa loquitur doctrine, he must have shown not only "control" by Hill, but "exclusive control" by him. The majority of the Court of Appeals relied upon Vogt v. Hotard, 144 So.2d 714 (La.App. 1962); Parlow v. Carson-Union-May-Stern Company, 310 S.W.2d 877 (Mo. 1958), and Powell v. Moore, 228 Or. 255, 364 P.2d 1094 (1961), as support for their position "that where the defendant is directing and managing the construction and use of an instrumentality, the jury may find him to be in exclusive control despite the incidental aid of the plaintiff." These cases are in no way declaratory of the New Mexico law, are not inconsistent with the result we reach under the particular facts of this case, and do not support the Court of Appeals.
" Indeed, as also stated by this court in Powell v. Moore, 228 Or. 255, 263, 364 P.2d 1094 (1961): "We are not permitted to remove from the jury the question of defendant's negligence unless we can say that defendant did not in any respect fail to exercise due care and that it would be impossible for reasonable men sitting as a jury to conclude that he did. * * *"
3. Res ipsa loquitur — loss of earning capacity. Plaintiff also assigns as error the refusal of the court to give a requested instruction on res ipsa loquitur and contends that defendants had complete management and control of equipment used to hoist and tow plaintiff's truck, citing Powell v. Moore, 228 Or. 255, 269, 364 P.2d 1094 (1961). Defendants contend, in response, that such an instruction on res ipsa loquitur would have been improper because plaintiff pleaded specific allegations of negligence and did not plead general negligence, citing Dacus v. Miller, 257 Or. 337, 343, 479 P.2d 229 (1971), and Thorp v. Corwin, 260 Or. 23, 26, 488 P.2d 413 (1971).