31 Ga. App. 798 | Ga. Ct. App. | 1924
J. W. Bridges brought an action for personal injuries
The injury sued for was caused by the falling of the overhead plastering in the defendant’s theatre building, in which the plaintiff, as an invitee, was attending a show. The petition averred, that the “defendant was negligent, in that the said plastering was allowed to be on said overhead ceiling without being properly supported, in that there was nothing underneath said plastering to hold the same up, and the same was of an inferior quality of plastering material, being too brittle and not having the proper tensile strength, so that the keys thereto between the lathes would hold the weight of said plastering, and in that the said plastering did not have sufficient fiber or hair in the same to give it the proper tensile strength necessary to support the weight of the same overhead.” There was no direct evidence to sustain these averments, and it is urged by the plaintiff in error that the doctrine of res ipsa loquitur does not apply in this case; and that by reason of the failure of the plaintiff Otherwise to make proof or even attempt to make proof of any of the acts of negligence set forth in his petition, the verdict is unsupported by the evidencb, and that for this reason the motion for a new trial should have been sustained upon the general grounds.
The plaintiff testified that the piece of plastering that fell upon him was about four or six feet square. He could not say how deep it was, but it was a large piece. Mr. George Campbell, sworn for the defendant, testified: “I am the manager of the Bonita Theatre. I remember the occasion when the plastering fell at that theatre. . . I think that plastering had been on that ceiling between six and seven years, but I don’t remember how long. There was nothing on the plastering such as a watermark or a leak, to indicate that there was anything the matter with it; there was nothing to show up. I “don’t know what made it fall, but there was nothing to show up, because every morning—it is a public place and I looked at it myself. Yes, there was something the matter with it to make it fall, but there was nothing to show up, a mark or anything. The fellow that put up there is named George Goodrich, but he was killed last year in Jacksonville. I had ii put
“Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420. The owner of a building is responsible to others for damages arising from defective construction. Civil Code (1910), § 3694. While it was not shown, in the evidence, that the defendant was the owner of the building, the testimony of Mr. Campbell authorized the inference that the defendant was responsible for the construction of the plastering which fell. It therefore makes no difference whether the defendant knew when the plastering was being constructed that it was defective. It was its absolute duty to know. Defective construction is misfeasance; and where there is absolute misfeasance, the party guilty thereof is ipso facto chargeable with knowledge. Construction which is not strong enough to stand the strain of ordinary use is defective construction. Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127). The duty referred to is to be exercised, of course, under the rule of ordinary care.
The falling of plastering in a theatre building is an unusual occurrence, although it may occasionally happen. “Where something unusual happens with respect to a defendant’s property over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant’s negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant who had in charge the instrumentality which was the
In ground 2 of the amendment to the motion for a new trial error is assigned upon a charge of the court which was a verbatim restatement of the first sentence quoted above from the decision of this court in the Sinkovilz case, supra. It is assigned that the use of the clause shown in parentheses, “the occurrence being such as does not happen if reasonable care has been used,” was in effect an expression of opinion by the court that the acts alleged would not have happened if reasonable care had been used. We do not think the expression was susceptible of this construction, but it was equal to this: “provided the occurrence be such as does not happen if reasonable care has been used,” and that the jury must have so understood it. It is urged further that the charge was error because it excluded from the jury any consideration of the fact that the plastering might have fallen from some latent defect or from some cause not chargeable as negligence against the defendant, and amounted to an instruction that the defendant was negligent. This assignment is without merit. As we have stated above, the fact that if the plastering was defective, the defect was latent and unknown would not necessarily absolve the defendant from liability; and there was no expression of opinion by the court as to what had been proved.
With an explanation of the meaning of the phrase “res ipsa loquitur,” the court instructed the jury further in the language of the second and third sentences which we have quoted above from the Sinkoviiz case. In ground 3 of the amendment to the motion
Ground 5 alleged that a new trial should be granted “because the charge as a whole charged the jury in mere general terms as to the doctrine of res ipsa loquitur, and failed to instruct the jury in clear and unequivocal terms as to the law applicable thereto.” This assignment is too general. Smith v. State, 125 Ga. 300 (1) (54 S. E. 124); Spence v. Morrow, 128 Ga. 722 (1) (53 S. E. 356); McElwaney v. MacDiarmid, 131 Ga. 97 (6) (62 S. E. 20); Wall v. State, 153 Ga. 309, 323 (112 S. E. 142). It is shown in the brief of counsel for the plaintiff in error that the “law applicable thereto,—that is, to the doctrine of res ipsa loquitur,—which it is contended the court erroneously omitted to charge, is the same as set
These rulings on practice are not made for the purpose of shirking the decision of any question, but are in accordance with long and well-established usage, as appears in the reported eases. The rule requiring that assignments of error in a motion for a new trial should be specific is not enforced merely for the convenience of the court of review, but is to be complied with out of fairness to the court below, in order that the trial judge may intelligently correct alleged errors, if existing, when he passes upon the motion for a new trial. The opposite party also has an interest in having explicit information as to what questions are presented when the motion is heard in the trial court. In some cases it may be that if he is specifically enlightened as to the error which -the movant claims to have been committed, he may be willing to concede it and consent that the motion be sustained rather than to incur the delay incident to a review. But we do not think that the plaintiff in error has lost anything by the form of the assignments in the instant case. Even if we interpret and consider them in accordance with the contentions contained in the brief filed by its attorney, we find that the learned judge who sat in the case below instructed the jury in “clear and unequivocal terms” that “where the defendant denies any allegations contained in the plaintiff’s petition, or says that, for want of sufficient information, it can neither admit nor deny such allegations, the burden of proof is upon the plaintiff to establish such allegations by a legal preponderance of the evidence.
In ground 4 of the amendment to the motion for a new trial exception is taken to an instruction of the court as follows: “The duty assumed by the owner of a place of amusement or recreation where the public are invited for his profit and their pleasure is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care. In the latter the standard is extraordinary care; in the former, ordinary care. And in this case the duty upon the defendant is exercise of ordinary care, and I have defined to you what ordinary care means.” It is urged that this was erroneous for the following reasons: (a) “Because it was not applicable to the evidence in'this case, and was prejudicial to the defendant, in that it brought to the attention of the jury injuries occasioned by railroads, which injuries are numerous, sometimes severe, and occasioned by a multitude of causes other than those complained of in this case, and did not differentiate the facts in this case from the numerous causes of accidents which occur on a railroad.” (5) “Because the said charge is incorrect, in that it failed to explain to the jury that the burden of proof in cases of injuries to passengers is on the carrier, and that the presumption of negligence in such cases is against the carrier, and that this charge failed to draw the proper distinction as to the presumption in cases of carriers of passengers and in the present case.” (c) “Because it charges that the only difference between carriers of passengers and in the present ease is in the standard of care, in the case of carriers extraordinary care being the rule, and in the present case ordinary care. The jury were not charged in this excerpt of the charge, or in any other place in the charge, what extraordinary care was, and therefore a proper distinction was not drawn in the two cases, and such charge tended to and did mislead the jury.”
In regard to assignment a, we are inclined to the view that the comparison of the duty of one in the position of the defendant to that of a railroad company to its passengers was irrelevant. Although the excerpt is in the exact verbiage employed by this court in the second headnote of its decision in the case of Moone v. Smith, 6 Ga. App. 649 (2) (65 S. E. 712), language which would be proper
With reference to assignment i, the court was not dealing with the subject of burden of proof, but simply with the defendant’s duty, and there was nothing in the charge which would warrant the supposition that it authorized an application of the rule, obtaining in cases of personal injuries by a carrier to a passenger, that upon proof of the injury the carrier is presumed to have been negligent, until the contrary is shown.
The court did not err as contended in the last assignment upon the excerpt here under consideration, in failing to distinguish betiveen the extraordinary care owing by the carrier to its passengers and ordinary care as due by the defendant to the plaintiff in the instant case. It was sufficient that the jury were informed that the duty resting upon the defendant was the exercise of ordinary care, which the court defined.
We find no cause for setting aside the judgment of the trial court in overruling the motion for a new trial, and the judgment is therefore affirmed.
Judgment affirmed.