Chenall v. Palmer Brick Co

• Citation: 117 Ga. 106,43 S.E. 443
• Parties: CHENALL. v. PALMER BRICK CO.
• Decision Date: 07 February 1903
• Court: Supreme Court of Georgia

43 S.E. 443

117 Ga. 106

CHENALL.

v.PALMER BRICK CO.

Supreme Court of Georgia.

Feb. 7, 1903.

INJURY TO EMPLOYE—"RES IPSA LOQUITUR"— NEGLIGENCE.

1. Many accidents are mere casualties, for which no one is to blame. Others may have been caused by strangers, trespassers, by a fel low servant, by the defendant, or by the de-fendant and the plaintiff jointly. In this class of cases there is no presumption of negligence, and, even if negligence appear, there is no presumption as to who was guilty thereof.

2. There are cases where, in the absence of proof of any external cause, and the accident is of a kind which does not ordinarily occur without negligence, a jury may infer the want of due care from the mere happening of the occurrence. Prima facie, such negligence will be attributed to the person charged by law with the duty of maintaining and managing the thing causing the injury.

3. Where no explanation is given as to the cause of the fall of a brick arch, the maxim, "Res ipsa loquitur, " applies; and the jury may infer that there was negligence on the part of the owner, either in its original construction, or in its subsequent maintenance.

4. The master is bound to exercise ordinary care in furnishing the servant a safe place in which to work. The latter must exercise like care in discovering any defects therein.

5. Where it appears that a laborer was ordered to work under a brick arch, which fell and injured him; that he did not know of, and could not, by the exercise of ordinary care, discover, any danger in its construction; and the evidence as to the cause of the fall not being sufficient to necessarily rebut the inference of negligence which might have been drawn from the fall itself, —it was error to direct a verdict In favor of the defendant.

(Syllabus by the Court.)

Error from city court of Atlanta.

Action by Saint Chenall against the Palmer Brick Company. Judgment for defendant, and. plaintiff brings error. Reversed.

Burton Smith and Geo. Gordon, for plaintiff In error.

Smith, Hammond & Smith, for defendant in error.

LAMAR, J. The plaintiff, having been Injured by the fall of a brick arch, brought suit against the defendant, alleging and offering evidence tending to show that it was liable to him because it had put him to work in an unsafe place, under an arch that had been unskillfully constructed, and that plaintiff did not know of its condition, and could not have discovered the defect by the exercise of ordinary care. The defendant denied all of the contentions on the part of the plaintiff, and offered evidence to the effect that plaintiff had no business at the place where he was injured; that he was not there in the discharge of any duty, but that he, with two other employes, had concealed himself for the purpose of eating a watermelon; that the arch was properly constructed, and any defect causing it to fall was latent and undiscoverable by the master in the exercise of ordinary care; that for its construction the company had used good material and skillful workmen, under proper supervision; that the plaintiff had himself assisted in the building of the arch; and that, if there was any defect therein, it was caused by the negligence of a fellow servant. The evidence was very voluminous, and the foregoing is only a brief analysis thereof. After both parties had introduced their testimony, and while the case was being argued to the jury, the judge, of his own motion, directed a verdict in favor of the defendant, to which plaintiff excepted.

From the argument of counsel and the brief of the testimony, we are led to infer that the verdict was directed in favor of the defendant because the court found that there was no evidence of any negligence on the part of the master with reference to the construction or maintenance of the brick arch; the defendant insisting that there was no proof and no presumption of negligence, while the plaintiff contends that the mere fall of the structure was sufficient to give rise to a presumption of negligence, relying upon the application of the maxim, "Res ipsa loquitur."

There is no absolute presumption of negligence in any case, under our law. Even as to railroads, preliminary proof that the injury was occasioned by the running of the locomotives, cars, or other machinery of such company, must be submitted, before the presumption of negligence arises; Civ. Code, § 2321, being a sort of statutory application of the maxim, "Res ipsa loquitur, " since that statute raises a presumption of negligence from the mere happening of the injury. But in all other instances the plaintiff must establish on his part all of the facts necessary to show that the defendant is liable; the defendant not being called on to make any defense until enough testimony has been introduced to show that it owed a duty to the plaintiff, that it negligently failed in its performance, and that in consequence thereof the plaintiff had been damaged. Proof of the duty and injury are only parts of plaintiff's case. The law raises no presumption whatever as to who was to blame. The burden is...