Smith v. Telecable of Columbus, Inc., 52459
| Decision Date | 10 June 1977 |
| Docket Number | No. 52459,No. 2,52459,2 |
| Citation | 142 Ga.App. 535,236 S.E.2d 523 |
| Parties | Hazel SMITH v. TELECABLE OF COLUMBUS, INC |
| Court | Georgia Court of Appeals |
L. B. Kent, Columbus, for appellant.
Edward W. Szczepanski, Columbus, for appellee.
The Supreme Court on certiorari (Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977)) having reversed the judgment of this court reported as Smith v. Telecable of Columbus, Inc., 140 Ga.App. 755, 232 S.E.2d 100 (1976), our previous judgment is vacated and set aside.
The appellant was injured when an overhead cable which was owned, installed, and maintained by the appellee was snapped by a passing truck. At the first trial of the case, judgment was entered for the appellant in the sum of $27,500. The trial judge granted a motion for new trial solely on the ground that a charge on res ipsa loquitur was improperly given. It was contended that the appellee did not have "exclusive control" of the cable, thus preventing application of the doctrine of res ipsa loquitur. At the second trial, judgment was based on a verdict for the appellant in the sum of $17,000. The appellant appeals the trial judge's grant of a new trial on the special ground after the original $27,500 judgment.
The cable in question was strung across a public street from a pole to a house on the other side. The cable was connected to the pole at a height of fourteen feet and to the house at a height of ten feet. It sagged in such a manner that all witnesses described it as being extremely low, measuring about eleven feet over the road on the side nearest to the house.
The truck which broke the cable carried a winch which reached a height of approximately 111/2 feet. There is no evidence that the truck was carrying anything else which could have struck the cable on the day that the appellant was injured. Although the truck had often driven on the road without incident, the evidence shows that it usually drove down the middle of the unlined road (where the cable is slightly higher than at the edge near the house) and that there had been a recent snow, which may have caused the wire to sag further. On the day in question a car was approaching the truck from the opposite direction and probably caused the truck driver to drive more to the right (where the cable was lower) than usual.
It is generally stated that for res ipsa loquitur to apply the injuring instrumentality must be in the exclusive control of the defendant; if there is an intervention by anyone else which could produce the injury, the doctrine does not apply. See Miller v. Gerber Products Co., 207 Ga. 385, 62 S.E.2d 174 (1950); Metzel v. Canada Dry Corp., 125 Ga.App. 460(2), 188 S.E.2d 175 (1972). The appellee contends that the very breaking of the cable by the truck was an intervention which caused it not to have exclusive control of the cable for res ipsa loquitur...
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Housing Authority of Atlanta v. Famble
...Hall v. Chastain, 246 Ga. 782, 273 S.E.2d 12. This court has criticized the doctrine of "exclusive control" in Smith v. Telecable of Columbus, 142 Ga.App. 535, 536, 236 S.E.2d 523 and expounded the requirement that the "evidence must afford a rational basis for concluding that the cause of ......
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Bean v. Landers
...error of law in that the evidence did support the court's original charge to the jury on res ipsa loquitur. Smith v. Telecable of Columbus, 142 Ga.App. 535, 236 S.E.2d 523 (1977). Thus if the trial court erred as a matter of law in granting a new trial because of the cumulative effect of sp......
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Walter v. Orkin Exterminating Co., Inc.
...we are satisfied that even under the more relaxed test of Sams v. Gay, 161 Ga.App. 31(2), 288 S.E.2d 822 and Smith v. Telecable etc., 142 Ga.App. 535, 536, 236 S.E.2d 523, the evidence in this case does not afford "a rational basis for concluding that the house would not have burned in the ......
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Bryant v. Colvin
...the requirement of exclusive control of the instrumentality by the defendant has been condemned by this court. Smith v. Telecable of Columbus, 142 Ga.App. 535, 536, 236 S.E.2d 523; see also Code Ann. § 38-123 (Code § 38-123); Western & Atlantic R. v. Fowler, 77 Ga.App. 206(1), 47 S.E.2d 874......