27 Ga. App. 133 | Ga. Ct. App. | 1921
Mrs. Moseley sued Patterson & Son, undertakers, who were engaged also in the business of transporting for hire sick or disabled persons by ambulance from their homes to hospitals. The suit was for damages on account of the death of the plaintiff’s husband, alleged to have been eáused by negligence of an agent of the defendants in dropping the stretcher on which the plaintiff’s husband was being removed from his home to the ambulance for the purpose of being carried to the hospital. Two men were bearing the stretcher, one at the head of the plaintiff’s husband and the other at his feet, and it was alleged that the one who was at the head negligently dropped the end of the stretcher, so that it fell violently to the pavement, and the concussion and jar to the body of the sick man was so great that his appendix was ruptured, discharging its contents into his abdominal cavity, in consecpienee of which he died. The evidence by which the plaintiff- attempted to support these allegations was substantially as follows; It was not clear what caused the stretcher bearer to drop his end of the stretcher, or indeed that he dropped it at all. - The most reasonable hypothesis from the evidence ivas that while going down the steps from the residence to the pavement in front of the sidewalk the bearer of the stretcher in the rear, in some unaccountable manner, slipped on the top step, lost his footing, and fell to the steps, still holding on to the stretcher, but that the stretcher as well as the stretcher bearer fell down either on the steps or on the pavement below the steps. There- were two steps from the porch to the pavement, and the steps as well as the pavement were slippery, it being a damp, rainy day; and the print of the rubber heel of the shoe of the stretcher bearer who stumbled and fell indicated that he had slipped on the top step
Section 5942 of the Civil Code (1910) is as follows: “If the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit will be granted.” The general rule announced by the Supreme Court is that a motion for nonsuit should not be granted when there is any evidence tending to sustain the plaintiff’s action, or where the jury can fairly infer from the evidence a 'state of facts favorable to the plaintiff. In Vickers v. Atlanta & W. P. R. Co., 64 Ga. 307, Judge Bleckley expressed the rule in the following original and lucid •language: “Nonsuit is a process of legal mechanics: the case is chopped off. Only in a clear, gross case is this mechanical treatment proper. Where there is any doubt another method is to be used — a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.” Bearing in mind the above statutory provision and the rulings of the Supreme Court, the question arises: Was there any evidence, direct or circumstantial, tending to sustain the plaintiff’s action and from which the jury could fairly deduce an inference favorable to the plaintiff? If there was, the case should not have been “ chopped off ” bj' the action of the coart, but should have been left to the “ chemists of the law,” the jury, to examine “ every molecule of the evidence ” and determine whether it possessed any probative force favorable to the plaintiff’s cause of action.
It was necessary for the plaintiff to go one step further and produce evidence of sufficient probative force to warrant the jury in arriving at the conclusion that this negligence caused an injury which constituted the proximate or efficient cause of the dece
Judgment affirmed.