Sinkovitz v. Peters Land Co.

• Decision Date: 16 March 1909
• Docket Number: 1,311.
• Citation: 64 S.E. 93,5 Ga.App. 788
• Parties: SINKOVITZ v. PETERS LAND CO.
• Court: Georgia Court of Appeals

64 S.E. 93

5 Ga.App. 788

SINKOVITZ v. PETERS LAND CO.

No. 1,311.

Court of Appeals of Georgia

March 16, 1909

Syllabus by the Court.

It is the duty of the owner of a building which abuts upon a public highway to use ordinary care to keep it from being a source of danger to the public after its construction, as much as it is his duty originally to see that it is not a source of danger to the public by reason of improper or unskillful construction. While the owner of a building abutting upon a public street is not an insurer of the absolute safety of those who pass upon the sidewalk, reasonable care must be exercised by him to keep it in such condition as that neither the building, nor any part thereof, will fall and passers-by be thereby injured.

[Ed Note.-For other cases, see Negligence, Cent. Dig. § 59; Dec Dig. § 44. ^[*] ]

Where something unusual happens with respect to a defendant's property over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant's negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another that the defendant who had in charge the instrumentality which was the direct cause of the injury was guilty of negligence may or may not be drawn by the jury; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact, and consequently, where the inference of negligence may as well be drawn as the inference that the casualty resulted from accident or the act of God, it is error to award a nonsuit.

(a) The maxim, "Res ipsa loquitur," is to be applied with the greatest caution, and its application depends greatly upon the circumstances of each particular case. But, where the physical facts surrounding an occurrence are such as to create a reasonable probability that the occurrence and consequent injury resulted from negligence, the physical facts themselves are evidential, and may or may not furnish evidence of the particular negligence alleged.

(b) If the extraordinary character of the occurrence is sufficient to raise an inference of the negligence alleged, a prima facie case is established, and the burden of disproving negligence, especially in a case where the parties do not sustain to each other the relation of master and servant, is cast upon the defendant to disprove negligence upon his part; this for the reason that it is more particularly within his power to explain the character and condition of the instrumentality which may have occasioned jury than within the power of the injured party.

(c) In the absence of any satisfactory explanation that the occurrence was accidental and providential, or other sufficient explanation, if something unusual happens in respect to a defendant's property or to something over which he has control, whereby the plaintiff is injured, and the natural inference on the evidence is that the unusual occurrence is due to the defendant's act, the occurrence, being unusual, is said to speak for itself that such act was negligence (citing Words and Phrases, vol. 7, pp. 6137-6138).

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 218, 293; Dec. Dig. §§ 121, 136. ^[*]]

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

Action by Sarah Sinkovitz, by next friend, against the Peters Land Company. Judgment for defendant, and plaintiff brings error. Reversed.

An inference of negligence from an unexplained occurrence may or may not be drawn; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact, and consequently, where the inference of negligence may as well be drawn as the inference that the casualty resulted from accident or the act of God, it is error to award a nonsuit.

Dorsey, Brewster, Howell & Heyman, for plaintiff in error.

Smith, Hammond & Smith and E. M. Underwood, for defendant in error.

RUSSELL J.

The plaintiff, by her next friend, sued the Peters Land Company for injuries received from glass falling from a window in the Peters Building in the city of Atlanta, Ga. In her petition she alleges that as she was going up certain steps on Wall street, leading to Whitehall street viaduct (the building in question abutting on Wall street), she was struck by pieces of a window-pane falling from said Peters Building, by reason of which a serious and painful injury resulted to her. The defendant was charged with negligence in three particulars: (1) That the window-pane had not been properly placed or set and secured in the sash. (2) The omission to use flat sprigs to reinforce the putty, and the inferior quality of the putty which was the support of the pane of glass in the absence of the sprigs. (3) That the window-pane itself was defective and not capable of sustaining the force of the usual winds to be expected in Atlanta, and especially those to be anticipated at this particular location.

Upon the trial the plaintiff offered to amend the twenty-first paragraph of the petition by an additional allegation of negligence, but this amendment was refused. Paragraph 21 in the original petition was as follows: "Petitioner shows that said defendant was further negligent, in that said window-pane was itself defective and not capable of sustaining the force of the usual windstorms and flurries of wind to be expected in Atlanta, and especially at the place where the Peters Building is located." In response to a demurrer, paragraph 21 was, by permission of the court, amended by amplifying its allegations as follows: "That said window-pane was defective, in that the same was too thin and too brittle, and did not have the tension required for its size; that, on account of said window-pane being so thin and brittle, it was not capable of sustaining the force of the usual windstorms and flurries of wind to be expected in Atlanta and at this place. Atlanta is situated from 1,000 to 1,100 feet above the sea level, upon a ridge, where it is exposed to the windstorms and flurries that are caused by the changes in climatic conditions; that strong flurries of wind moving with great force are frequent in Atlanta; and that the same come up suddenly and unexpectedly, and require window-panes of strong tension to sustain their force. The Peters Building is located on one side of the railroad leading into the Union Depot, and is some eight stories high on the Wall street side."

By the amendment, which was rejected by the court, it was proposed to add to the twenty-first paragraph of the petition as amended the following: "It is adjacent to the Kimball House, which is about eight stories high. The buildings located on the south side of the railroads form a solid bank, and are three or four stories high. The buildings on Peachtree street west thereof are, respectively, four and sixteen stories high. The height of these buildings with the open space between, forming banks as it were for the currents of air, force these currents of air about and around these buildings with great force. At the southwest corner of the Peters Building, and on the west and south sides thereof, on account of the conditions herein set forth, windstorms and flurries of wind are constantly to be expected, and the window-panes should be of such material, with sufficient thickness and toughness, to withstand the same. Petitioner shows that the window-pane in the window complained of was not of such thickness and toughness, and that the failure to have said window-pane of such thickness and toughness required to withstand the usual windstorms and flurries of wind was negligence on the part of the defendant. The conditions herein described existed at the time that said injury occurred."

1. We think that the court should have allowed the amendment, which was offered by the plaintiff in error. The amendment was permissible either as a fit and full response to the demurrer or as an additional ground of negligence setting up reasons why the defendant, in the exercise of ordinary care, should have provided these windows with glass of more than ordinary thickness and toughness. We can see no reason why the learned trial judge should have rejected this amendment. It was suggested in the argument that the height of the buildings surrounding the Peters Building, which created the conditions as to the windstorms and flurries alleged by the plaintiff in the proposed amendment, had been changed and increased since the original construction of the Peters Building, and, this being conceded to be the fact, the trial judge was of the opinion that it would not be the duty of the defendant company to change its building to meet the exigencies arising from conditions for which it was not responsible. The evidence in the record is meager upon this point; but, granting that the erection of these buildings of 14 stories in height near the Peters Building increased the force of the air currents, and that the panes of glass in the defendant's building before the erection of nearby buildings of great height were suitable and reasonably safe, we are nevertheless of the opinion that it was the duty of the defendant as the owner of the building to still keep its building and all of its appointments just as reasonably safe, if the conditions were so changed as to render what had previously been safe unsafe to passers-by.

As was held in Monahan v. National Realty Company, 4 Ga.App. 680, 62 S.E. 127, not only must the landlord construct his...