119 Ga. 837 | Ga. | 1904
Lead Opinion
This is the second appearance of this case. See Chenall v. Palmer Brick Company, 117 Ga. 106. At the last trial the plaintiff recovered a verdict, and now the defendant complains that the court erred in refusing to grant it a new.trial.
Under our system, where every question of negligence is left for determination hy the jury, even in cases where the maxim under consideration is applicable, the judge should not charge the jury that there would be an inference of negligence from a given state of facts, but should instruct them in clear and unequivocal terms that negligence must be proved, and it is for them to consider whether the manner of the occurrence and the attendant circumstances are of such a character that they would, in their judgment and discretion, be authorized to draw an inference that the occurrence could not have taken place if due diligence on the part of the master had been exercised. And they should also be instructed, that, while they are not required by the law to draw any inference of negligence from the matter, still it is within their province to determine whether the circumstances are such that such an inference might be properLvjiiaw-m— If in a given case the jury see proper to draw an inference of negligence from the manner of the occurrence or the attendant circumstances, the drawing of this inference is not necessarily to result in a finding in favor of the plaintiff. It imposes upon the jury the duty of making further inquiry as to whether this inference, has been overcome by a satisfactory explanation. If the jury have drawn the inference of negligence, and there is evidence which satisfies their minds, notwithstanding such inference of negligence, that the occurrence was really brought about by the negligence of a fellow-servant, the inference is overcome, and the jury should find in favor of the defendant. So, if there is evidence that the master has fully discharged the duty which the law requires of him in reference to his servant, although he has not satisfactorily accounted for the occurrence, the inference should go for naught, and the finding should be in favor of the defendant. The application of the maxim res ipsa loquitur does not change one iota of the law of master and servant, but simply affords, in some rare cases, a means of proof to which the servant may resort to carry the burden which the law imposes upon him in a case where he sues his master for negligence. In these cases, which are of rare oc
In the present case the petition alleged that the plaintiff was under the direction of one Montgomery, a boss in the employment of the defendant, “ who ordered him to assist in the repair of a brick kiln.” He “was directed to go inside of the kiln, which was undergoing repairs, to get certain bricks which were therein, and carry them to the masons, who were at work on the outside of the said kiln.”' While at work within the kiln the top of the same fell upon plaintiff, injuring him. The paragraphs of the petition which allege negligence on the part of the defendant are ás follows : “ (10). Defendant was negligent in this, that it furnished an unsafe place in which plaintiff was required to labor. (11). The kiln which fell upon the plaintiff was constructed in a careless and negligent and unworkmanlike' manner, and was unsafe
As some of the rulings of the trial judge were not in entire accord with the views above presented, the judgment must be reversed. As some of the assignments of error are of such a character as to require a reversal on other grounds than that the evidence was not sufficient to withstand a nonsuit, we do not now express any opinion as to whether the plaintiff is entitled to recover on the evidence appearing in the present record. On the evidence as presented in the former record it was held that the jury were authorized to return a verdict in favor of the plaintiff. It is contended that the evidence in the present record is materially different from what it was before. This may be true, but we can not know that on another trial the evidence will be the same as it is in this record; and the case is, therefore, remanded to be disposed of on another trial in accordance with the law as applicable to the facts as they then appear.
In the cross-bill of exceptions complaint is made of certain instructions of the judge to the jury. As there is no special assign- . ment of error upon any of these instructions, it' is necessary to determine only whether they contain sound abstract propositions of law. Apparently they do, and we will not inquire whether they are adapted to the facts of the case.
Judgment on main bill of exceptions reversed; cross-bill affirmed.
Concurrence Opinion
I concur in the judgment, but dissent as to the proposition stated in the first headnote.