15 S.E.2d 543 | Ga. Ct. App. | 1941
1-4. The special grounds of the motion for new trial, complaining of errors alleged to have been made in the charge of the court, are without merit.
5. Under the conflicting evidence a jury question was presented as to whether or not the identify of the bottle, tendered by the defendant as being the one which exploded and injured the plaintiff, had been sufficiently established.
6. The evidence was sufficient to authorize the verdict returned by the jury in favor of the defendant.
On the trial of the case the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and several special grounds. The court overruled the motion, and the exception here is to that judgment.
1. Special ground one of the motion for new trial assigns error on a purported excerpt of the charge of the court. The language quoted does not, however, appear in the charge in immediate sequence, but is an assembly of parts of the charge out of proper relation to the context in which used, and in part in reverse order in which used, and mixed with language which constitutes instructions as to legal principles applicable to issues under the contentions of the plaintiff is other language which refers merely to contentions of the defendant as to exercising ordinary care and representing a separate and distinct instruction of the court as given to the jury in another context. This assignment of error is without merit. All of the quoted language, when placed in its proper relation within the charge, is not subject to any objection urged by the plaintiff in error.
2. The court charged the jury as follows: "If you find that the defendant company has exercised ordinary care in the transaction under investigation, then there can be no recovery, regardless of whether the bottle broke or exploded, and regardless of whether the plaintiff was injured as complained of. Manufacturers of food and drink in this State are not insurers of their products, but they must exercise ordinary care and diligence in the preparation and distribution to their trade. And in this case if you find that the defendant has used this ordinary care there can be no recovery. The mere fact that the bottle burst would not authorize you to find a verdict against the defendant unless you further find that the *208 defendant was negligent, lacking in care in one or more of the ways set out in the petition. . . If it has not been satisfactorily shown to you what caused the bursting or explosion of the bottle in question, and if the cause of its bursting remains a mystery to you, unless it has been shown to your satisfaction that the bottle burst because of the alleged negligence of the defendant, there can be no recovery." Error is assigned on the grounds that the court unduly stressed the contentions of the defendant, and that the charge was argumentative and invaded the province of the jury, in that it had the effect of withdrawing from the consideration of the jury the doctrine of res ipsa loquitur, about which the court had previously charged the jury, and which if applied set up an inference of negligence against the defendant "and precluded the question of ordinary care from the minds of the jury, the only issue in such case being as to whose negligence it was that caused the injury," and that for this reason the charge was confusing and misleading to the jury.
The excerpt is not subject to the objection that it unduly stressed the contentions of the defendant. The defendant was entitled to have the court state them to the extent shown, especially in a case of this kind where by proof by the plaintiff of certain facts and circumstances the jury would be authorized to apply, as the court had charged, the doctrine of res ipsa loquitur, and in doing so examine the defendant's evidence to determine whether or not it had exculpated itself from the inference of negligence which the jury might draw. With respect to the other objections urged the following is applicable: One who manufactures and markets a bottled beverage is not, in this State, an insurer of the wholesomeness of the contents or the safety of the bottle, but is bound only to the exercise of ordinary care in respect thereto, and the statement by the court of such rule of law did not amount to an argument. The right of the jury to apply the doctrine of res ipsa loquitur in a given case is not tantamount to relieving the plaintiff of the burden of showing that the defendant has failed to exercise ordinary care towards the plaintiff. The maxim res ipsa loquitur, as was said in Cochrell v. Langley Mfg. C.,
In showing facts and circumstances which permit the jury to find that the casualty or phenomenon was unusual and extraordinary and free from all external causes, and thereupon to apply such doctrine, the plaintiff is merely using a medium, distinct from that involving direct evidence, by which to establish an ultimate fact, and thus undertaking to carry the burden cast on him by law of proving his case by a preponderance of the evidence. The court was correct in charging, and without militating against such doctrine, that the plaintiff could not recover if it was shown that the defendant had exercised ordinary care as pleaded. If the plaintiff, in a case of this kind, shows merely the fact of a bursting bottle, and stops there, he would not make out his case. The explosion may have been caused by accident or by the act of a third party, and not by the negligence of the defendant. The responsibility must be fixed by the jury, and while they may in a proper case apply the doctrine of res ipsa loquitur, it is error for the court to instruct them that they must do so. Where an event "is unusual and extraordinary in its nature, and there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause, then the jury is authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur, in determining whether or not the accident must have been thus occasioned."Atlanta Coca-Cola Bottling Co. v. Danneman, *210
There may be evidence before the jury which would authorize them to find that the plaintiff's or some other intermediary's negligence was the cause of the bottle bursting, and in that case the jury would not need to resort to the application of the doctrine of res ipsa loquitur. But if they eliminate, as to negligence, all intermediaries or the fact of an accident, the inference of negligence would rest upon the one who put in circulation the thing which caused the damage, and "In such a case it would be no answer, when the maxim that the thing spoke for itself is invoked, to say that when the injury resulted the thing was not in the possession, power, or control of the manufacturer." Payne v. Rome Coca-Cola Bottling Co., supra. Accordingly, if when the plaintiff had made out such a case and rested, and the defendant put up no evidence to exculpate itself, the plaintiff would be entitled to a verdict. But if the defendant introduced evidence to show the exercise of ordinary care on its part in respect to the thing doing the damage, it would be the duty of the jury, if they applied the doctrine of res ipsa loquitur, to determine whether or not the defendant had shown to their satisfaction that it was not negligent as claimed. If the jury find that the defendant has successfully established its defense, it would return a verdict in its favor, but nevertheless the inference of negligence, drawn from the unusual and extraordinary event, would not have been set aside, but would persist for all time, not against the defendant, but against some undisclosed person, notwithstanding the fact, as said by Judge Russell in Sinkovitz v. Peters Land Co.,
3. Ground three of the motion for new trial sets forth a purported excerpt of the charge of the court which does not represent a distinct and connected instruction of the court, but is a combination of widely-scattered parts of the charge. Accordingly, this ground is without merit and insufficient to call for any ruling.
4. The entire charge of the court, of which complaint is made in special ground four of the motion for new trial, is not subject to any of the objections urged, and in view of what has been stated hereinbefore in the opinion any detailed discussion is deemed unnecessary and unprofitable.
5. The fifth special ground of the motion for new trial assigns error on the admission in evidence of an empty broken bottle as the one which had burst and injured the plaintiff, it being contended by the plaintiff in error that it had not been sufficiently identified. While the evidence in this respect was conflicting, it was sufficient to require submission to the jury of the issue of identity.
6. The evidence on the trial of the case was voluminous, but without entering into any detailed discussion it is deemed sufficient to say that from it the jury was authorized to return the verdict in favor of the defendant. It can not be known whether or not the jury applied the doctrine of res ipsa loquitur. Without doing so they were authorized to find from the testimony of one of the plaintiff's witnesses, who with him was, at the time of plaintiff's injury, about to place some bottled Pepsi-Cola in an ice box in which other bottled drinks were already present, that this witness in moving some of the bottles from one side of the ice box to the other side "jostled" or struck together some of the bottles, and that in this manner one of the bottles was cracked or broken and exploded with resulting injury to the plaintiff. If, however, the jury did not so find, and did not find that the explosion was caused by the plaintiff's negligence or that of any person who handled the bottle after it left the possession of the manufacturer, they were authorized *212
to apply the doctrine of res ipsa loquitur, and in applying the same to find that the defendant had exculpated itself from any inference of negligence, in that it had used ordinary care and diligence in the manufacture and marketing of its product. There was uncontradicted evidence that it had bought all of its bottles from a very reputable manufacturer, that it employed modern and efficient machinery and equipment in the preparation and processing of its product, and there was evidence that it carefully tested and inspected the bottles which it used and studiously sought to avoid any overcharge. In all respects the jury was authorized to find that in these matters the defendant exercised ordinary care and diligence and an expert witness testified for the defendant that in his opinion the explosion of the bottle was caused from outside pressure. While it is properly contended that the evidence showed that the defendant used refilled bottles, these bottles were not such as came from sources unknown to the defendant and about which there was no evidence as to the reliability of the manufacturer or the quality of the bottles, but were all bottles which had been purchased from one source, a manufacturer of high standing, and which were always carefully inspected at each time of refilling. The mere fact of a refilled bottle would not establish its unfitness for use. In Atlanta Coca-Cola Bottling Co. v. Danneman,
Judgment affirmed. Stephens, P. J., concurs. Felton, J.,concurs in the judgment. *213