58 Ga. App. 795 | Ga. Ct. App. | 1938
Edward G. Callaway, an employee of the Atlanta Journal, died from injuries received when an elevator, situated in the building owned by his employer, and used by himself and other employees, became detached from the steel cable from which it was suspended, and fell several stories to the basement". Several months before this unfortunate accident, the defendants, who were engaged in the business of installing and repairing elevators in the City of Atlanta, contracted to and did remove the old cable and installed a new one on said elevator. Without entering into unnecessary detail, the petition charges substantially that in removing the old cable it Avas necessary for the defendants to, remove a certain nut and bolt which secured the elevator to the cable, and that in installing the neAV cable and replacing the bolt they failed to properly secure the same in the usual and ordinary manner, to wit, by placing therein, in a hole provided for such purpose, a cotter-pin or cotter-key, Avhich would have prevented said nut from gradually Avorking off of the bolt, as it did, and would thus have prevented the cable and elevator from separating. At the conclusion of the evidence for the plaintiffs the court on motion, entered a nonsuit. We think this was error. The whole case as presented by the briefs of counsel in this court depends on whether the evidence for the plaintiffs was sufficient to authorize the jury to find that the defendants, in performing its contract to install a new cable on the elevator, did remove the nut and bolt in question, and in replacing the same failed to place a cotter-pin or cotter-key therein. The defendants take the position that it was necessary that the plaintiffs prove these facts by direct evidence, i. e. (reducing this position to its final result), that some one must have seen the defendants remove the nut and bolt and replace the same without putting a
’“Circumstantial evidence is that which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.” Code, § 38-102. If the evidence for the plaintiffs, circumstantial though it be, tends to reasonably establish the theory of the case made by the petition, and preponderates to that theory rather than to any other reasonable hypothesis (Georgia Railway & Electric Co. v. Harris, supra; Smith v. Atlantic Coast-Line R. Co., 5 Ga. App. 219, 62 S. E. 1020; Jarrell v. Seaboard Air-Line Ry., 21 Ga. App. 415, 94 S. E. 648; Southern Ry. Co. v. Wessinger, 32 Ga. App. 551, 567, 124 S. E. 100), it was error to enter a nonsuit. Vickers v. Atlanta & W. P. R. Co., 64 Ga. 307; Corcoran v. Merchants & Miners Transportation Co., 1 Ga. App. 741 (57 S. E. 962); Wallace v. Southern Ry. Co., 10 Ga. App. 90 (72 S. E. 606). It appears from the evidence for the plaintiffs that after the accident the nut was found, and its condition indicated (1) that it had worked off of the bolt, and (2) that no cotter-pin had been placed therein. All of the witnesses agreed that if a cotter-pin had been'placed in the nut and bolt the nut would not have worked off. The plaintiffs introduced a witness who was familiar with the mechanism of the elevator with reference to its connection with the cable, and who, after describing the same and stating his reasons, gave it as his opinion that in removing the old cable and installing the new one the defendants had to remove the nut and bolt in question. We can not see why this
Judgment reversed.