Emory Univ. v. Bliss, (No. 17035.)

• Decision Date: 20 September 1926
• Docket Number: (No. 17035.)
• Citation: 134 S.E. 637,35 Ga.App. 752
• Parties: EMORY UNIVERSITY. v. BLISS.
• Court: Georgia Court of Appeals

35 Ga.App. 752

134 S.E. 637

EMORY UNIVERSITY.

v.BLISS.

(No. 17035.)

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1926.

Motion for Rehearing Denied Oct. 2, 1926.

(Syllabus by the Court.)

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit by A. R. Bliss against Emory University. Judgment for plaintiff, and defendant brings error. Reversed.

Candler, Thomson & Hirsch, of Atlanta, for plaintiff in error.

J. R. Terrell, of La Grange, and W. S. Howard and A. R. Dorsey, both of Atlanta, for defendant in error.

BELL, J. Dr. A. R. Bliss, while employed as professor of pharmacology in Emory University, a corporation, was injured by a gas explosion in the stock room of his department. He sued the university for damages and recovered. The defendant's motion for a new trial, containing the general grounds only, was overruled, and it excepted.

The following is a general description of the surroundings, as gleaned from the petition and the undisputed evidence: The plaintiff's injuries were received in the stock room. This room was situated a few feet from the laboratory room in which the students made experiments and received instructions. The stock room and the laboratory room, with a hall or corridor between, were both constructed with two floors, about four inches apart, the upper floor being of wood and the lower of concrete. The upper floor rested upon sills which were laid upon the concrete. In the space between the floors were pipes through which gas was supplied to the laboratory. These pipes extended through small iron boxes set upon the concrete at various places in the laboratory, and in each of these boxes was a pet cock to control the outlet of gas. The pipes were not air tight in the holes through which they went into the boxes, and it was physically possible for some air to pass from the boxes into the open space between the floors, and vice versa, carrying gas, if any should be released from the pipes in either place. The holes were 15/16 of an inch in diameter while the diameter of the pipes was only 11/16 of an inch. Each box had a movable lid, the top of which was flush with the wooden floor. When a student found it necessary to use gas, he would remove the lid from the box and connect a rubber tube with the pipe at the cock, then turn on the gas which would be conveyed through the tube to the student's table. The gas was thus supplied to lamps, and burned as needed. When the students were "through using the lamps, they were supposed to turn off the gas cock, detach the hose, and put the iron cover back" on the box. The gas was subject to use by the classes in the above-described manner several times weekly. The explosion which caused the plaintiffs injuries was between the double floors, apparently beginning in the laboratory room and extending into the stock room.

The plaintiff alleged, and sought to prove, that, as a result of a defect or defects in the pipes, gas escaped and accumulated between the floors and in some way became ignited, and that the defendant was negligent in failing to maintain the pipes in a proper condition and in failing to inspect the same and to warn the plaintiff of the defective condition. The plaintiff testified that "at the time the explosion took place that morning, the students, under [his] instructions, had opened these iron plates [or boxes], put the gas tubes on, and connected them up to the burners, and were actually engaged in lighting up lamps; they lit these lamps by striking a match." The plaintiff, however, undertook to exclude the theory that the explosion resulted from any negligence on the part of the students. This involved proof to the effect thatthere was no gas in any of the iron boxes containing the pet cocks at the time of the occurrence, but that the explosion was from gas confined somewhere else between the floors. The plaintiff's case depended entirely upon circumstantial evidence, including an application of the maxim res ipsa loquitur.

The defendant contended that the explosion was attributable to some other cause as probable as the fact of its negligence, and introduced evidence accordingly. The defendant submitted also direct evidence to show that it was not negligent. It will be seen from the above statement that if an inference of the defendant's negligence was legally authorized under the circumstantial evidence and was not conclusively rebutted by the direct testimony, the verdict should stand, but that if either of these propositions should be decided in favor of the defendant, the verdict must be set aside. In our view of the case, it is unnecessary to discuss the evidence by which the plaintiff claims to have shown the defendant's negligence. At most, it was only circumstantial and subject to rebuttal, and in our opinion, if a prima facie case was ever made out, it was rebutted as a matter of law. "When a plaintiff's right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed." Frazier v. Ga. Railroad Co., 108 Ga. 807(1), 33 S. E. 996.

"A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable, and unimpeached testimony that the fact does not exist." Neill v. Hill, 32 Ga. App. 381(2, b), 123 S. E. 30.

If the direct evidence established, without dispute, that the defendant was not...