Summary
finding that "trial court should have allowed the jury to make a determination of whether the defendant’s negligence, if any, was the proximate cause of plaintiff’s injuries under a charge including the principle of res ipsa loquitur"
Summary of this case from Matthews v. Yoplait United States, Inc.Opinion
44905.
SUBMITTED JANUARY 8, 1970.
DECIDED FEBRUARY 4, 1970. REHEARING DENIED FEBRUARY 26, 1970.
Action for damages. Fulton Superior Court. Before Judge Williams.
Cullen M. Ward, Frank M. Eldridge, for appellant.
Neely, Freeman Hawkins, John V. Skinner, Jr., for appellee.
The maxim res ipsa loquitur being applicable, the trial judge erred in directing a verdict for the defendant.
SUBMITTED JANUARY 8, 1970 — DECIDED FEBRUARY 4, 1970 — REHEARING DENIED FEBRUARY 26, 1970 — CERT. APPLIED FOR.
Mrs. Sara Dawson, as next friend for her son Ralph Dawson, seeks to recover damages from the American Heritage Life Insurance Company. The defendant is the owner of a building at 3272 Peachtree Road, N.E., in Atlanta. Ralph Dawson was injured on June 14, 1967, when the top portion of the glass in an entrance door of the building fell onto him as he pushed against a cross bar to open the door and enter the building. The petition discloses that at the time he was employed by Owen A. Evans, a distributor of Newspapers for newspaper vending boxes for Atlanta Newspapers, Incorporated, and that he had an arm load of newspapers to place in a vending box located inside the building. It is alleged that the plate glass was loosely and poorly set in the door so that it vibrated and broke upon the application of normal pressure by Dawson to the door, that the glass was too thin and weak for use in a door often used, and that the defendant had knowledge of the condition or should have discovered it through the exercise of ordinary care. Negligence as the proximate cause of the injuries is specifically alleged in maintaining the door and glass in a defective condition, in failing to inspect the door and its operation, in failing to warn petitioner, and in failing to exercise ordinary care to keep the premises safe.
The proof reveals that Dawson had worked as a "jump boy" for Evans about five months at the time of the incident in 1967 and had entered the building about ten times previously to put papers in the vending box. He ran to the door with a load of papers, stopped, pushed against the cross bar on the door, but did not touch the glass, and the glass fell out. A triangular fragment of glass is described in the transcript as 1" x 1-1/2" x 1-1/2" and 1/4" thick. The answers to interrogatories addressed to the defendant, as read in evidence to the jury, reveal that the defendant acquired the building on October 31, 1960, and that for an unknown period of time a newspaper vending box had been located in the lobby of the building without either the express approval or objection of the owner. These answers further show that the age of the entrance doors was unknown, that the thickness of the glass in the door at the time of injury to Ralph Dawson was unknown, and that the glass had been broken "several times, the exact number of times unknown" before June 14, 1967, "by being struck with metal" and by unknown persons.
At the close of the plaintiff's evidence the defendant moved for a directed verdict, and the court sustained the motion. The plaintiff appeals, asserting error solely on the action of the trial court in directing a verdict.
We concur in the view expressed by the trial court to the effect that the situation as disclosed by the evidence is indicative of an arrangement of some mutual benefit so that "certainly the jury will have a right to find it is an invitee situation." In determining what is necessary to elevate a person above the status of a licensee, as defined by Code § 105-402, the Supreme Court has expressed the view that the statutory definition is plain and unambiguous, and must be applied as a whole, so that even if the person "is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises" he must also come within the test which follows, and not be a person "who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification." Anderson v. Cooper, 214 Ga. 164, 167 ( 104 S.E.2d 90). The court in that case also stated (p. 169) "that the determining question as to whether a visitor is an invitee by implication [ Code § 105-401] or a licensee [ Code § 105-402] is whether or not the owner or occupant of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit." Certainly, under the evidence in the present case, the owner inferentially derived some benefit, real or supposed, from the fact that a newspaper vending box was readily accessible to occupants of the building.
The trial court, however, directed a verdict for the defendant on the basis that even if the evidence authorized a determination that Ralph Dawson was an invitee, there was no evidence to authorize a determination that his injuries were proximately caused by the negligence of the owner of the building. We think the court erred in so holding.
Except by way of inference there is nothing in the evidence to disclose any negligence, for all that appears is the fact of the occurrence. Ralph Dawson pushed against the cross bar on the door to open it, and the plate glass broke and fell out, or fell out and broke, causing his injuries. The case of Sinkovitz v. Peters Land Co., 5 Ga. App. 788 ( 64 S.E. 93), involved a similar unexplained occurrence. The evidence disclosed that a pane of glass, without any apparent cause, fell from the window of the defendant's building, injuring the plaintiff. The court, in applying the doctrine of res ipsa loquitur, had this to say (p. 793): "When the plaintiff showed that the pane of glass which struck her fell out of the window of the defendant's building, and that its fall was not caused by the occupants of the suite of rooms, or by the agency of any other person, she had made a prima facie case which should have been submitted to a jury, to say whether, from the circumstances attending the fall of the pane of glass, they would draw the inference that the fall of the glass and her consequent injury was due to the alleged negligence of the defendant company, or was a pure accident, or was attributable to such a high wind as that the casualty might be considered the act of God. The maxim res ipsa loquitur is of limited application, but embodies a perfectly sound legal principle. It is frequently difficult to determine when it can be safely said that the thing speaks for itself. However, the process by which it is to be determined whether the physical facts and circumstances accompanying an injury are such that the act may be said itself to speak the negligence of the defendant is to be worked out by the jury and not by the court. Not only is negligence or diligence, in every case where either is involved, a question solely for the jury, but it is also the prerogative of the jury to say in the first instance whether the evidence adduced to raise the inference of fact — that an extraordinary and unexplained casualty authorizes an inference that the defendant was negligent, is sufficient or insufficient for the purpose." See also Chenall v. Palmer Brick Co., 117 Ga. 106 ( 43 S.E. 443), another leading case involving the doctrine of res ipsa loquitur.
The trial court should have allowed the jury to make a determination of whether the defendant's negligence, if any, was the proximate cause of plaintiff's injuries under a charge including the principle of res ipsa loquitur.
Judgment reversed. Bell, C. J., and Pannell, J., concur.