Parker v. Dailey

• Citation: 226 Ga. 643,177 S.E.2d 44
• Decision Date: 10 September 1970
• Docket Number: No. 25881,25881
• Parties: B. C. PARKER v. Teresa DAILEY, by Next Friend.
• Court: Georgia Supreme Court

Page 44

177 S.E.2d 44

226 Ga. 643

B. C. PARKER v. Teresa DAILEY, by Next Friend.

No. 25881.

Supreme Court of Georgia.

Sept. 10, 1970.

Syllabus by the Court

1. The doctrine of res ipsa loquitur was not applicable in this case where the act asserted to be negligence was known, and where the intervention of an intermediary cause could have produced the injury.

2. The charge on the necessity of the plaintiff proving her case by a preponderance of the evidence did not render harmless the charge on res ipsa loquitur.

3. Other rulings by the Court of Appeals, assigned as error by the applicant for certiorari, are affirmed.

J. P. Chency, Millen, Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, A. Montague Miller, Augusta, for appellant.

Odom & Dendy, Thomas M. Odom, Florence Hewlett Dendy, Millen, William G. Grant, Atlanta, for appellee.

MOBLEY, Presiding Justice.

This court granted certiorari to review the rulings of the Court of Appeals in this tort action. See Parker v. Dailey, 121 Ga.App. 507, 174 S.E.2d 273.

Teresa Dailey, by next friend, sued for damages for severe brain injuries sustained by her at a time when she was eight years old. She was found underneath an inflated truck tire, weighing 178 pounds, in an unpaved sidewalk area of a public street. Bert Cecil Parker, one of the defendants, operated a trucking company from his home in a residential area, and he personally placed the tire (which was found on the plaintiff) in a leaning position against the street side of a fence on public property, with the base resting some 8 or 10 inches from the fence. The defendant knew there were numerous children who played throughout this residential area. An expert witness demonstrated to the jury that it requires approximately 12 pounds of pressure to topple the tire when placed with its base some 10 1/2 to 11 inches from the vertical, and 5 1/2 pounds of pressure when its base is 8 inches from the vertical. There was no direct evidence as to how the tire came to be on the child.

The jury found a verdict for the plaintiff. The Court of Appeals affirmed the trial court in refusing to direct a verdict, or grant a judgment notwithstanding the verdict or new trial, in favor of Bert Cecil Parker. He contends in his application for certiorari that the Court of Appeals erred in affirming the denial of the motion for judgment notwithstanding the verdict and motion for new trial on the general grounds, and in approving certain charges of the trial court.

1. The trial court charged the jury on the doctrine of res ipsa loquitur as follows: 'I charge you further you are instructed that the burden rests upon the party charging negligence to prove it by a greater weight of the evidence. However, you are instructed that whenever an instrumentality which produces an injury is shown to have been under the control and management of the defendants, and the occurrence is one which, in the ordinary course of events, does not happen if due care is used, then the fact that the occurrence took place and caused an injury will in itself be deemed to afford reasonable evidence to support an inference of negligence on the part of the defendants.'

The expression 'res ipsa loquitur' means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that 'the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of, the thing doing the damage,' and 'the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.' Chenall v. Palmer Brick Co., 117 Ga. 106, 109, 43 S.E. 443, 445. The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant.

It is our opinion that the facts of the present case do not make it one...