*1 596 presence
other children, defendant be- appear fore condition, charged them in a drunken and semi-nude mature mak- codefendant, male, appearing so ing suggestive remarks to them. Under definition broad neglected allegations such children sufficient show exposure deliberate children to which would conditions neglected en- render such children reason of immoral vironment. accordingly properly overruled.
The demurrer was Frankum Jordan, Judgment JJ., affirmod. concur. Rehearing denied September 28, Decided 10, 1961. October plaintiffs error. Casey Thigpen, Hutcheson, Solicitor, Thomas A. contra. HARRISON, by
38975. Next Friend v. SOUTHEASTERN al.
FAIR ASSOCIATION et September Rehearing denied 26, Decided 1961; October *5 Branch Wilson, & John Barwick, Jr., W. N. Wilcox, Richard Hubert, plaintiff in error. Ringel, Field, Martin &
Smith, Sam F. Carr, Lowe, Jr., contra. Judge. The contends 'the unique and Bell, unusual nature of injury by sustained her within the falls category of usually those which not do occur in the absence of negligence part on the of urges defendants, might thus draw an inference of doctrine under the or maxim of res loquitur. The quality distinguishing evidence before when coupled us history appli with the cation ipsa loquitur doctrine of by appel res Georgia late agree courts impels with this view.' us to happens
“Where something respect unusual a defend- to- property ant’s over which has such extraor- control, by he (the dinary injured occurrence a being occurrence happen such as does if care used), been an reasonable has may inference injury arise was due to the defendant’s negligence. ipsa loquitur The maxim evidence, -a rule which applied applied at all. The
to be if jury, which unexplained occurrence cases arise from an some had defendant another, who injury has worked cause charge the direct instrumentality was may not drawn negligence, may guilty *6 in the but, negligence negligence, the or jury; like the fact no peculiarly ference the draw jury authorized to is may which be Co., an Land fact . . .” v. Peters Sinkovitz 93). (64 Macon App. (2) See Coca-Cola 5 Ga. SE also (114 517). Bottling SE2d Chancey, 61, Co. v. 216 Ga. Here Stephens’ clearly defendant that testimony the revealed exclusively machine positively the was under his for he control, that had or had asserted one else control of the moon rocket no tampered any it in occurrence way. extraordinary with The by unexplained burning left plaintiff’s here was the hip heat while The af- riding tremendous on this unusual machine. firmative was that plaintiff evidence of and her she witnesses injured upon rocket, although when conflicting moon that disproved. argument, In by the not defendant, offered was plaintiff that was it that unlikely the defense contends was injured upon complaint was made her during by ride since no week. descending anyone nor the next the ride until from But the suf- jury might delay that well concluded was have she explained testimony her ficiently by the went ato restroom on the and burn, discovered fairgrounds, immediately hospital thereafter father. was rushed to her testimony The physician pain frequently of the is no degree explain a third accompanying might burn also adequately complaint It plaintiff’s lack of on descent from the ride. certainly is not unreasonable that the anxiety parent, his pause obtain care im- medical for his would not to file an child, complaint Further, operator mediate with the ride. daughter injured father testified that on Saturday his was a Monday. Stephens he following “contacted” the on the defendant imposed either the any duty In event, was no injury. operator immediate notice of her give or her father to maxim warned that the supra, In the Sinkovitz this court case, greatest Its loquitur applied with the caution. to is be particular the circumstances of each depends upon naturally use surrounding occurrence physical But where facts case. occurrence that the probability are such create reasonable as to phys- negligence, the injury—resulted from consequent —and fur- may or not evidential, ical themselves facts alleged. particular nish evidence of in- situation, In this factual machine unusual was extraordinary. ap- We jury testimony indicating feel pearance most degree cause a third heat sufficient to burn, type serious or near seat in an amusement ride burn, in permit sufficient to infer due jury negligence. may may course the jury defendant’s Of them, but issue inference, draw must submitted to case, at was not done in the Sinkovitz here. As stated case page negligence or diligence, every “Not only is but question solely where either involved, jury, it instance say in the first prerogative is also the fact— the inference of raise whether adduced to *7 unexplained casualty an extraordinary that and authorizes in- that sufficient or negligent—is the was defendant any “In the absence of purpose.” sufficient the Furthermore, for that the explanation occurrence accidental was satisfactory explanation, something if unusual or other sufficient providential, something property a or to happens respect in to defendant’s injured, the control, whereby plaintiff is he over which has oc- unusual the evidence is the natural inference on and the occurrence, unus- being the to the act, due defendant’s currence is negligence.” act that such was speak for itself ual, said to (2c). Ibid, p. 788 the cause the existence of heat in car sufficient to
Here, the explained defendant, but rather plaintiff’s injury by the was injury heat the and were denied. presence both Under wrongful possibility was no the facts and the would, her plaintiff contributing conduct to on loquitur. Prosser application of res found, prevent if Torts, 208-9. 42, pp. 2d Ed. § defendant verdict for the directing a
The court erred trial allow jury been submitted to the to should have since issue it decide proper to instructions whether or not to draw under negligence. inference of defendant’s Although opinion division this demon holding in 1 of existing view court’s the factual situation strates the compatible application here with jury is one ipsa loquitur, yet more maxim an additional of res directing we trial court erred in why basic reason feel that plaintiff’s overruling for the and in the verdict defendant motion a new . trial. be
There is testimony which,-if found in the record believed by the jury, would have authorized them find defend- to- ant negligent. expert
The witness for the plaintiff, A. 0. testified that White, opinion his heat generated be produced by could by friction the rubbing of against cats; the-wheels the side metal of the that he found evidence places friction of such in worn sides of cars; and that one “appeared wheel mis- aligned as something a result” of he the con- wrong found nection of the sweep pins wheel to that one of the was out the “spider” missing. was although This at testimony, variance with defendant, offered on behalf of the suf- was ficient create an evidentiary issue as the defendant for jury to resolve. If believed device plaintiff’s expert was, was in the condition it testified produced, found heat was would friction, authorized neg- have finding that machine defendant’s ligently operated or maintained.
Furthermore, Stephens notice, the defendant under one had injured by version of that a rider evidence, had been day injury. shortly plaintiff’s burn same before This have the jury to find *8 the testimony empowered defend- would ant malfunctioning had of the machine. Continu- notice some- of inspection after operation in ing rocket ride a would cursory by negligence by serve the sanction a determination of source through the defendant to eliminate the cause or a failure the heat. of except where there is no verdict, direct
“It is error to and facts, as the material conflict in the introduced evidence 605 together deductions evidence reasonable introduced with all n particular verdict. Code or inferences therefrom demands (58 812) (4) 110-104.” Norris v. SE2d Coffee, 206 Ga. § and cases cited.
Here introduced material in the evidence were conflicts respective di- parties. trial court to It error for rect a verdict for the defendants. holdings
In view the of opinion, 2 of and divisions. this the question necessarily application to whether the of arises as ipsa loquitur may present doctrine of res be consistently this plaintiff case since the has introduced some evidence of negligence defendant’s which tends to show the heat could how generated have been produced upon body the bum plaintiff. of the testimony negligence
This tending to show a con- was that of engineer sulting qualified as an whose expert, attestations summarized in 2 of opinion. division
Also summarized division 2 is of defend- testimony ants’ expert witness, contradicting plaintiff’s offered expert.
Where plaintiff evidence of defendant’s introduces some rely upon pro- still the inference negligence, by the vided loquitur res rule?
Normally the ipsa loquitur applies doctrine of where only direct negligence unavailable, absent evidence showing precise introduction of cause specific accident ren- defendant’s acts of ders doctrine inapplicable. Negligence, 65 C.J.S. (6). presumption “Hence the from or arising § of, the doctrine cannot availed or is where overcome, knowledge the specific negli- has act and testifies as.to gence which complained of, cause is the where there is direct precise evidence as accident cause and all occur- upon facts and circumstances attendant clearly appear. rence evidence,
“The how acci- however, introduction of as .the happened dent necessarily and the does not prevent cause thereof the application acci- though even cause doctrine,
606 deprived of the disclosed, plaintiff is not thereby is
dent
evi
the doctrine
mere introduction of
benefit of
from the
establish
leaves
clearly
which does not
facts
dence
facts
all the
.
.”
pp.
.
1002-4. Where
Ibid,
matter doubtful
Stans
not applicable.
the doctrine is
by
are shown
evidence
(193
Collis
375);
SE
App. 634,
Ga.
647
v. Gardner, 56
field
654).
of
(95
“The doctrine
Ga.
748
SE2d
Ashe,
746,
212
v.
in
types
negligence cases
of
ipsa loquitur
applied in certain
res
is
part
the defendant
of
negligence on
prove
order to
explained,
otherwise cannot be
injury
which
alone,
of
fact
.
negligence.
.
happen without
not
ordinarily
which
would
explain,
serving
evidence
direct
at
bar,
In
case
Kim
believe, what caused the accident.”
the jury
if
should so
(53
208).
Floyd
berly
App. 137,
v. Reed, 79
In
Ga.
145
SE2d
(200
Co.,
154,
531),
&
the court
App.
v.
59 Ga.
157
SE
Swift
ap
analyzed
doctrine
stated that
cases there
show
is
cause
external
plicable “only
absence
evidence as to an
of
cited,
Georgia
here
interpret
decisions
injury.”
of
As we
rule in
we conclude
consulted,
others
and numerous
ipsa loquitur
removed
the doctrine of
is
State is
res
fully
are
ex
the causes of
only
from
case
where
Bottling
Atlanta
plained
the evidence.
also
Coca-Cola
See
(4) (102
542).
Danneman,
App. 43,
SE
Co. v.
Ga.
45
agreed
It
“quite generally
is
the introduction
evidence
complete explanation
not
purport
does
to furnish
deprive
ipsa loquitur.”
occurrence does not
of res
Prosser,
Torts,
incomplete
214.
ex-
p.
2d
An
Ed.,
43,
Law
§
loquitur
from
planation
does
remove
not
doctrine
case,
evidence,
“but
does
at
the cause
if,
the close
dispute
is,
not
it
clearly
or if
is a
as to what
appear,
argue upon
evidence,
then
open
it is
to the
whole
presumptions
justified
upon
relying
and the
in-
that the
has been shown
unless
are satisfied
cause
they
614,
Old
p.
quoting
it.”
v.
A.L.R.,
Cassady
consistent with
(68
285);
Co.,
10,
N.E.
63 LRA
Colony
It Georgia, rule generally accepted to be the (including think) we that place operation for the the doctrine there is no of of the the the ipsa' loquitur res evidence reveals all in case where facts and and the in suit surrounding circumstances occurrence clearly precise plaintiffs the the injury. establishes cause of Jur., 296, Am. But, hand, on the most Negligence, 299. other §§ the question of courts which have the seem have considered to concluded that where doctrine the applicable, is otherwise plaintiff not right forfeit have it applied by does his1 to intro- ducing specific negligence some not evidence of which does clearly injury. precise definitely and establish cause of 791, 33 A.L.R.2d 795.
Unfortunately for the litigants, exceedingly and for difficult judge trial before whom tried tlhe bemay matters where rule applicable, apparently precise is rule no or standard the issue may be accurately gauged. requires It merely admission of for existing appellate facts us to confess courts of this es- nearly State—and all not elsewhere—have guide any tablished satisfactory judge for the trial follow to “It this field. apparent application becomes of these general rules, experienced have a many difficulties, courts unhappily ipsa condition general characteristic of res field of loquitur." charge upon 793. jury A.L.R.2d The to ipsa res loquitur remains here to this for day judge, the trial guesswork. and essentially a matter of In con- elsewhere, plaintiff—who' by fused situation a no for conscientious counsel diligence fortuitous circumstances have exemplary may or slightest testimony negligence scintilla of tending to show part of the defendant—would client dare rest cause of his upon the questionable application maxim; and hazardous of rather, counsel would what he status show could. This unsettled of coupled mishaps when with the law, tightly limited area of doctrine be may applicable, necessarily where the limits un- proper patently curtails It seem its use. therefore would just introduc- appellate unfair to for courts say meager uncon- negligence, however any tion of benefit from the it would bar vincing be, loquitur. of our ipsa rule res not think decisions We do compatible perfectly it be go far. think to courts so' We where, as courts prior appellate decisions of to hold all our an incom- expert here, through testimony the use of to dispute plete occurrence in explanation of the facts of the left in doubt or is extent that cause still “true ipsa loquitur remains shown,” the doctrine res clearly case, permissible leaving to reject. accept for them to where one think better rule would is entitled be,
We loquitur, penal- benefit that the should not specific negligence as attempting make as case of ized be en- can under but rather should cause, of his he facts couraged can, clearly as extent prove much as he even *11 precise without for- establishing the this injury, cause of feiting However, despite benefit of our view the doctrine. prior this court point, we constrained decisions cannot Supreme go far. Court and so
Judgment J., Felton, J.,C. concurs Hall, reversed. concurs. specially. n Judge, specially. Chief concurring I concur spe- Felton, cially judgment the reason stated in Division 2 opinion. et al.
39114. BRAND WEIN v. GREENFIELD 1961. Decided October