Atlantic Steel Company v. McLarty ( 1946 )

This is not a case wherein the fact-finding tribunal has a choice of accepting expert testimony or not in preference to positive testimony to the contrary. The burden is on the claimant to show that the injury resulted from the accident. If the evidence shows two opposing inconsistent theories, one as reasonable as the other, the plaintiff fails to make out a case. Whether we can go as far as the dissenting opinion in Continental Casualty Co. v. Bennett, 69 Ga. App. 683 (26 S.E.2d 682), where Judge Broyles stated: "But in a case like this where the vital question in issue can be solved only by such testimony, and where the material and controlling parts of the testimony are uncontradicted, the testimony should and must be accepted as stating the truth," — the expert testimony at least set up a theory as reasonable, if not more so, than that the accident caused the injury. The claimant did not testify and he could not, not being an expert, that the acid caused the injury. Furthermore, Dr. Clay testifiedas a fact that there was no injury to the eyeball as a result of the acid being thrown in it. This fact is uncontradicted by any evidence that is necessarily inconsistent with it, and under the rule in such cases the testimony cannot be arbitrarily disregarded. Even if Dr. Clay had not added his expert opinion to the statement of fact just referred to, a finding in accordance with his opinion was demanded because if the acid caused no injury to the eyeball the acid could not possibly have caused the blindness.