41 Ga. App. 62 | Ga. Ct. App. | 1930
Lead Opinion
(After stating the foregoing facts.) Under the facts narrated above, the verdict in favor of the defendant was authorized, and it can not be set aside on the general grounds.
The first ground of special exception complains, with reference to the charge of the court, that admissions in the pleadings “may be taken as proof,” whereas, as the plaintiff contends, the rule is that a party is absolutely bound by unstricken admissions of fact thus made, and consequently it was not a question for the jury to 'determine, by any méthod or by any sort of proof, whether or not the defendant company had taken over the distribution of the electric current and the installation and operation of the equipment and appliances therefor. The second ground, very similar in its nature, excepts to the statement of the court that if the jury found, from the admissions of the defendant company, that it had installed and was operating the system of electrical equipment for supplying current taken over by it for distribution from the generating company, it would be “subject to the laws and rules
In the third, fourth, and eighth exceptions, complaint is made that the charge of the court did not give the plaintiff the benefit of what is known as the doctrine res ipsa loquitur; it being 'contended that the court should, of its own motion, have charged the jury that upon the admission by the defendant that it «was furnishing and controlled the electric current, and supplied and maintained the equipment and appliances therefor, and upon proof being submitted that the decedent was killed by electricity coming over the wires, and that such event was an unusual occurrence, “the jury would be authorized to infer negligence on the part of the defendant.” It was contended in another exception that the charge of the court that “if you should find from the evidence that the death of the deceased was caused by an unusual and improbable occurrence and one that could not have been reasonably anticipated and one that an ordinarily careful person would not have anticipated or guarded against,” the plaintiff could not recover, actually precluded the jury from applying the doctrine res ipsa loquitur in the case at bar. In another exception it is contended that the plaintiff was deprived of the application in his favor of the doctrine res ipsa loquitur by the charge of the court on the preponderance of evidence, — that “moral and reasonable certainty is all that can be expected in a legal investigation. In all civil cases a preponderance of the evidence is considered sufficient to produce mental conviction. When in the opinion of the jury the evidence is equally balanced on one side, where the jury believes the witnesses on each side equally credible, where
The court charged the jury as follows: “Where an electric-light company maintains overhead wires from its plant — or its main transformer in this case — to a residence of one of its patrons, for ■the purpose of supplying light to the house, the company is under duty to employ such approved apparatus in general use as will be reasonably necessary to prevent injury to the house or persons or property therein, arising from electricity which may be generated by a thunderstorm and strike the wires and be conducted thereby into the residence. An electric company having reasonable grounds to apprehend that lightning will be conducted over its wires into a house where it maintains an instrument under contract with a subscriber, and there do injury to persons or property, must exercise due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as are reasonably necessary to guard against such ac
It would seem that the only valid assignment of error with reference to the excerpt last quoted above is that the rule of law was inapplicable and confusing, under the pleadings and the evidence in the instant case, and, therefore, harmful. Nothing is shown to indicate wherein the charge is erroneous otherwise than being merely inapplicable, and, in that sense, a misstatement of the law of the instant case. No exception is taken to the charge as being in and of itself inherently erroneous, nor is il set forth by the assignment of error how or wherein it was inherently erroneous. Assuming, as stated in the brief of counsel for plaintiff, that the charge “had no application whatsoever to the allegations and proof in the case at bar,” it would be hard to see how it could have been harmful to the interests of the plaintiff, and we do not think the verdict should be set aside merely because such an inappropriate charge was given. In our opinion, however, the charge was not inappropriate, and since the assignment of error does not point out inherent error in the charge, or how or wherein it was erroneous if appropriate to the pleadings and the evidence, it does not seem that this court would be called upon to deal with the question of whether or not it was in fact inherently erroneous. Moreover, had the exception raised the question of whether the charge was not merely inapplicable, but inherently erroneous, we are of the opinion
Exception is taken to the following charge: “By the act oE God is meant any accident produced by physical causes which' are irresistible, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness. The act of God excludes all ideas of human agencies, no matter what degree of prudence may be exercised, it could not be prevented.” The plaintiff contends that the charge amounted to an instruction that the plaintiff could not recover if the death of the decedent was caused by lightning coming over defectively installed wires. The exception is not well taken. The defense was based upon the contention that the casualty was brought about by an act of God, unmixed with negligence on the part of the defendant, and the charge excepted to specifically states that “an act of God excludes all ideas of human agencies, no matter what degree of prudence may be exercised, it could not be prevented.”
Finally, exception is taken to the charge of the court to the effect that the defendant would be liable on account of any latent defects which by the exercise of ordinary care could have been discovered and remedied; the contention being that the evidence did not present any question involving latent defects. The charge given presented a correct abstract principle of law, and while it is the rule that an erroneous charge is presumed to be harmful, in order for a correct, though' inapplicable, charge to constitute reversible error, it must appear that it could have been harmful to the interests of the complaining party. While the evidence might not have presented any question relative to the existence of latent defects, the charge relative to the duty resting upon the defendant to remedy the same if such should exist could not, upon any reasonable theory, be taken as injurious to the plaintiff in this case.
Judgment affirmed.
Dissenting Opinion
dissenting. I concur in all except what is stated in paragraph 4 of the opinion. I think that, under the authority of the decision in Denson v. Ga. Railway & Electric Co., 135 Ga. 132 (68 S. E. 1113), the charge excepted to was error prejudicial to the plaintiff, and that the judgment should be reversed.