Palmer Brick Co. v. Chenall

• Decision Date: 30 March 1904
• Parties: PALMER BRICK CO. v. CHENALL.
• Court: Georgia Supreme Court

47 S.E. 329

119 Ga. 837

PALMER BRICK CO. v. CHENALL.

Supreme Court of Georgia

March 30, 1904

Syllabus by the Court.

1. The maxim res ipsa loquitur is applicable, under certain circumstances, in suits by a servant against his master for damages resulting from the latter's negligence. Simmons C.J., dissenting.

2. The maxim is however, rarely applicable in such cases, and only where the manner of the occurrence producing the injury or the attendant circumstances are such that the jury could reasonably infer that the occurrence could not have taken place unless the master was lacking in diligence as to instrumentalities, place of work, or fellow servants.

3. Whether such an inference shall be drawn is a question exclusively within the province of the jury, who are to determine whether the circumstances are such as to authorize the inference; and the circumstances must show that the occurrence was of such an unusual and extraordinary character that an inference of negligence would arise, which would overcome the presumption of law in favor of the master that he had furnished proper instrumentalities, a safe place to work, and competent fellow servants.

4. In any case the inference is slight, and especially is this true where the suit is by a servant against his master; and the jury should disregard the inference in every case where there is the slightest evidence which would either adequately explain the happening of the occurrence upon some other theory than the negligence claimed, or which would satisfy the minds of the jury that the master was not negligent notwithstanding the explanation of the master does not sufficiently account for the occurrence itself.

5. A petition claiming damages for negligence, which contains only general allegations of negligence, will be dismissed on special demurrer unless so amended as to set forth one or more specific acts of negligence.

6. It follows from the foregoing that when a petition sets forth general allegations of negligence, which are followed by an averment of a specific act of negligence, there can be no recovery by the plaintiff, unless the specific act of negligence is established to the satisfaction of the jury.

7. In a suit of the character above indicated, evidence of the circumstances attending the transaction which resulted in the injury, and constituting the res gestae of the occurrence may be properly admitted, although such evidence may show other acts of negligence on the part of the defendant than the one alleged. But such evidence will not authorize a recovery unless the specific act of negligence alleged is established to the satisfaction of the jury.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Saint Chenall against the Palmer Brick Company. Judgment for plaintiff, and both parties bring error. Reversed on main bill of exceptions, and affirmed on cross-bill.

COBB J.

This is the second appearance of this case. See Chenall v. Palmer Brick Company, 117 Ga. 106, 43 S.E. 443. 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.

1-4. When the case was here before, there was a distinct ruling to the effect that the maxim res ipsa loquitur would be applicable in an action by a servant against a master, While we are aware that this is a proposition upon which the courts are not by any means agreed, and the older rulings are generally to the contrary, still there are many decisions by American courts holding that, under given circumstances, this maxim is applicable in cases of the character referred to; and the trend of American authority seems to be now in that direction, even if the current is not already that way. See 2 Labatt's Master & Servant, § 834, and citations in note 8. While the maxim is applied with great caution in any class of cases, greater caution must be exercised in determining its application in a suit by a servant against a master, on account of the burden resting upon the servant, as well as the presumptions which exist in favor of the master. A servant who sues his master for damages on account of alleged negligence takes upon himself the burden of showing not only due care on his own part, but also that the master was negligent. Except in a case where the master sued is a railroad company, the servant cannot, under any circumstances, call to his aid any presumption of law which will have the effect to relieve him from establishing the existence of negligence by proof of facts requisite for that purpose. On the other hand, the master has in his favor two presumptions of law: First, that he has discharged his full duty to his servant in regard to instrumentalities, place of work, and fellow servants; and, second, that the servant has assumed all of the usual and ordinary hazards of the business. Before the servant can recover, he must overcome, by proof of the facts necessary for that purpose, these two presumptions that the law raises in favor of the master. The servant is required to prove negligence, but he may carry this burden of proof which the law imposes upon him like any other litigant, and may satisfy the requirements of the law either by direct or circumstantial proof. If he can, by the proof of a series of circumstances, establish that he has exercised due care and that the master was negligent, he may rely upon the circumstances for a recovery, even in the absence of any direct proof on the subject of his own conduct, or that of his master. The maxim res ipsa loquitur is simply a rule of evidence.

The general rule is that negligence is never presumed from the mere fact of injury, yet the manner of the occurrence of the injury complained of, or the attendant circumstances, may sometimes well warrant an inference of negligence. It is sometimes said that it warrants a presumption of negligence but the presumption referred to is not one of law, but of fact. It is, however, more correct and less confusing to refer to it as an inference, rather than a presumption, and not an inference which the law draws from the fact, but an inference which the jury are authorized to draw, and not an inference which the jury are compelled to draw. In the trial of an action by a servant against a master, where it has been shown that the servant was in the exercise of due care, and the manner of the injury or the attendant circumstances are such that injury could not have resulted unless the master had not been negligent in some respect in which the law required him to be diligent for the servant's safety, then the jury might be authorized to infer that the master had been negligent in respect of the matter which was the basis of the suit, and would be authorized to base a finding upon such an inference, in the absence of an explanation which would be satisfactory to them; and it is not necessary that this explanation should satisfy them as to the cause of the injury, but an explanation which satisfies them simply that the master has exercised all the diligence which the law requires of him would be sufficient to rebut the inference of negligence resulting from the happening of the occurrence, although the cause thereof might still be involved in an unsolvable mystery. Under our system, where every question of negligence is left for determination by 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 proven, and it is for them to consider whether the manner of the occurrence and the attending 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...