Minkovitz v. Fine , 67 Ga. App. 176 ( 1942 )

1. In view of the present-day hazards of automobile travel, the character of an automobile accident rather than the fact of it determines whether the maximum res ipsa loquitur applies.

2. The rule of res ipsa loquitur is a rule of evidence only. In an automobile negligence case it takes more than the mere happening of an accident to set the rule in operation. Carter Oil Co. v. Independent Torpedo Co., 107 Okla. 209 (232 P. 419). The phase of the circumstantial evidence rule expressed in the maxim res ipsa loquitur is that the circumstances attendant upon the accident raise the inference of negligence where the accident is unexplained and is such that in the common or ordinary (not extraordinary) course of experience it would not have happened if the driver in charge had used proper care or had not been guilty of negligence.

3. This maxim applies where a specific cause of the accident is not shown and the circumstances justify a finding that the defendant, having had full control of the automobile which caused the injury, has given no explanation or evidence as to the cause, and the plaintiff has no knowledge of the exact cause, and it does not appear that he has or knows of evidence to show a specific cause. Cullen v. Pearson, 191 Minn. 136 (253 N.W. 117, 254 N.W. 631).

4. Where the cause of the accident is clear on the evidence, whether direct or circumstantial, that is, where the evidence of its own natural force explains the specific accident, the rule of res ipsa loquitur, being unnecessary, can not be applied. McAnany v. Shipley, 189 Mo. App. 396 (176 S.W. 1079).

5. The rule in Georgia is: "One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence." Capers v. Martin, 54 Ga. App. 555 (188 S.E. 465).

6. Ordinary negligence is a failure to exercise "that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." Code, § 105-201.

7. Gross negligence is a failure to exercise "that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances." Code, § 105-203.

8. Generally speaking, the maxim res ipsa loquitur is based upon the relationship of the ordinary person (that is an ordinarily prudent person) to the common or ordinary experiences of life. 37 Words and Phrases, 336; Breen v. New York Cent. H. R. Co., 109 N.Y. 297 (16 N.E. 60, 4 Am. St. R. 450). The prima facie inference of negligence, under this maxim, is a failure to exercise "that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." (Italics ours.) Code, § 105-201.

9. While the rule of evidence expressed in the maxim res ipsa loquitur may make out a prima facie case of ordinary negligence, it is insufficient in itself to make out a prima facie case of gross negligence. 9 Blashfield's Cyc. Auto. Law, 335 (2).

10. Even if the rule of evidence expressed in the maxim res ipsa loquitur is applicable under the evidence of this case to make out a case of ordinary negligence, nevertheless it is not applicable with respect to the amount of such negligence so as to make out a prima facie case of that higher degree of negligence, to wit, gross negligence, which is required in this State where a guest is suing the host, the driver of an automobile; and the burden of proving such gross negligence can not be met by a mere inference or presumption of negligence.

11. The rule of res ipsa loquitur applies only "where the plaintiff does not know what caused the accident and negligence may be presumed from the fact that an accident occurred, in view of the general circumstances. But where a plaintiff is required to prove not only negligence, but gross negligence, this very requirement would seem to imply the necessity of proving how the accident occurred and that certain facts existed which in themselves disclose the presence of gross negligence as distinguished from ordinary negligence." Lincoln v. Quick, 133 Cal.App. 433, 437 (24 P.2d 245).

12. As respects liability for negligence under the doctrine of res ipsa loquitur for injury inflicted by the driver of an automobile, where all the instrumentalities which could likely have caused the injury were under the exclusive control and management of the driver, yet the accident is unexplained, the inferences which can be drawn from the circumstances attendant upon the accident extend only to the "scope of ordinary experiences" (which are the common experiences of ordinary men, that is, ordinarily prudent men, under the same or similar circumstances), being coextensive with "the permissible inferences," are the proper measuring rod by which it can be determined whether the inference or inferences were permissible under the rule of res ipsa loquitur.

13. There being no evidence in this case that facts existed which in themselves disclosed the presence of gross negligence as distinguished from ordinary negligence, the judge did not err in granting a nonsuit.

DECIDED FEBRUARY 26, 1942. ADHERED TO ON REHEARING APRIL 3, 1942. Miss Emma C. Minkovitz brought suit against Mr. Jake Fine Jr. for injuries alleged to have resulted from the gross negligence of the defendant while the plaintiff was riding in his automobile as a guest in the City of Savannah, Georgia, under the following circumstances: The plaintiff and the defendant had an engagement to celebrate New Year's Eve together. The defendant called for the plaintiff about 9:30 o'clock in the evening of December 31, 1940. During the course of the evening they went from place to place where different groups were having parties. In the time they were together the defendant had two or three drinks and the plaintiff had three or four. The last place to which they went was Johnnie Harris's night club where they had a sandwich and a coca-cola. They left this night club about five o'clock in the morning of January 1, 1941. The defendant drove west on Victory Drive from the night club until he reached Bull Street. He turned north on Bull Street. At the intersection of Victory Drive and Bull Street he passed another car. From that point until he reached the point of the accident he passed no other car. There was no traffic on Bull Street, nor were there any cars parked thereon. He drove north on Bull Street for approximately four blocks until he had almost reached the intersection of Bull Street with 37th Street. At a point about fifteen feet south of 37th Street, on the left side of Bull Street with respect to the direction in which the defendant was driving, the automobile collided with a tree.

As to the cause of the automobile colliding with the tree the defendant testified that he remembered passing another car at the intersection of Victory Drive and Bull Street, and "the next thing I recall is the accident itself," and "there is nothing in the world I know about the accident. . . The first thing I recall in connection with the accident is seeing Miss Minkovitz unconscious." As to the cause of the collision, the plaintiff testified that her "recollection prior to the accident faded out at the corner of Bull and Victory Drive. . . From Johnnie Harris's to Bull and Victory Drive he [the defendant] was driving perfectly normal. I don't remember what happened after that before the accident. I did not notice anything that transpired in his operation of the car or in the conduct of Mr. Fine that led me to believe that anything was going to happen. There was no symptom of sleepiness on his part that caused me to have a premonition that something was wrong. Mr. Fine and I carried on a perfectly normal and regular conversation. The car was driven in a perfectly safe manner and at a reasonably safe speed." At that point she was asked the question: "You can't charge him with driving the machine at any other than a safe manner up to the time of your recollection fading out, just four blocks before the accident, — he was operating the machine normally and at a reasonably safe rate of speed?" She answered: "Yes." She then continued to testify: "I do not charge Mr. Fine with operating his machine under the influence of liquor. I do not charge him in any manner with driving while affected by drink. I do not know what caused the accident or how it happened. I am asking for money for damages because of gross negligence." She also testified: "The last thing I remember was crossing the railroad tracks at Victory Drive and Bull Street [approximately four blocks from the accident], the automobile going north. The next thing I remember after that was coming to after the accident. . . When I came back to consciousness I was sitting in Mr. Fine's car. . . The car was on the western side of Bull Street [left side with reference to the direction in which the car was being driven] up against a tree. . . In answer to your question as to whether I dozed off or fell asleep before this accident happened, I do not know. I either fell asleep or the blow made me forget what happened just before the accident. I am not positive whether I fell asleep or not." On cross-examination she testified: "Mr. Fine and I were very good friends prior to the accident. We still are and we still go together."

As to the speed of the automobile there was only the testimony that it was being driven at a "reasonably safe speed." Circumstances indicating the speed were the facts that the plaintiff was knocked unconscious, the windshield was smashed in, the plaintiff suffered a knot on her head in the center of her forehead, she had a gash on her forehead, and could not make her jaws come together, she had several teeth knocked out, her jawbone was knocked out towards the ear and touched the nerve and was very painful, six or seven of her teeth were chipped, she had to have a brace in her mouth for six weeks, her teeth being wired together, her face was swollen and she had a big blue bruise on her left leg, and her mouth was cut. The tree as well as the car was damaged to a certain extent. "It was a pretty violent blow. . . The main damage . . was . . the grill of the automobile was damaged. There was damage to the bumper that hit the tree. It was a headon collision between the front of my car and the tree," on the left side of the street.

At the conclusion of this evidence the judge granted a nonsuit, and the plaintiff excepted. The effect of the testimony was that the last thing either the plaintiff or the defendant remembered was four blocks from the scene of the accident; at that time the defendant was driving the automobile at a normal and reasonably safe rate of speed and in a safe manner; he was not in any manner under the influence of whisky nor was his driving affected thereby; the street was free from traffic and parked automobiles, and there was no evidence that there were any defects in the street; the defendant was driving on the right side of the street, and neither the plaintiff nor the defendant knew what caused the car to cross the street and hit a tree on the left side thereof.

Generally the defendant's negligence will not be presumed from the mere happening of the accident. In negligence cases the plaintiff has the burden of showing that the defendant failed to perform a duty owing to the plaintiff. The rule of evidence which is expressed in the maxim res ipsa loquitur is one of the phases of the rule of circumstantial evidence and must be sparingly applied, and then only when the facts and the demands of justice make the application essential. Anderson v. McCarthy Drygoods Co., 49 Wn. 398 (95 P. 325, 16 L.R.A. (N.S.) 931, 126 Am. St. R. 870); Palmer Brick Co. v. Chenall, 119 Ga. 837, 844 (47 S.E. 329). The rule of res ipsa loquitur "does not apply in any case where there is direct testimony as to the cause" of the occurrence. 9 Blashfield's Cyc. Auto. Law, 328 (6); Slaton v.Atlanta Gas-Light Co., 62 Ga. App. 42, 47 (7 S.E.2d 769). Where circumstantial evidence must be depended on, the maxim res ipsa loquitur is even then applied only to a phase of the circumstantial evidence, which, when the circumstances are proved, leaves, no room for a different presumption than that the circumstances of the case, unexplained, justify the inference of negligence. 9 Blashfield's Cyc. 328 (5); Galbraith v. Busch,267 N.Y. 230 (196 N.E. 36); Springs v. Doll, 197 N.C. 240 (148 S.E. 251); White v. Executive Committee of the BaptistCon., 65 Ga. App. 840 (16 S.E.2d 605). In view of the present hazards of automobile travel, the character of the accident rather than the fact of it determines whether the maxim applies, and where the cause of the accident is clear on the evidence which of itself, or of its natural force, explains the specific cause of the occurrence, the maxim, being unnecessary, can not be applied to establish liability. 9 Blashfield's Cyc. Auto. Law, 325 (97), 326 (5, 6); Heffter v. Northern States Power Co., 173 Minn. 215 (217 N.W. 102). It applies only when a definite cause, although unexplained, does not happen according to common (ordinary) experience without fault; that is, without the negligence of the defendant. Stangy v. Boston c. Ry. Co.,220 Mass. 414 (107 N.E. 933); Riggsby v. Tritton, 143 Va. 903 (129 S.E. 493, 45 A.L.R. 280). In the dissenting opinion in Galbraith v. Busch, supra, it was observed: "We have had of late an increasing number of negligence cases wherein the litigation is between the members of the family — mother suing daughter, as in this case, children the father, or wife the husband — actions which never would have been brought were it not for the fact that the defendant was covered by insurance, so that the loss falls upon the casualty company. The difficulty in properly presenting a defense may, therefore, be due somewhat to the fact that the actual defendant is not the one whose name appears in the action, and that by reason of a family relationship between the parties and their joint interest in the recovery, there is difficulty in procuring evidence for the defense." It was further said that in other States, such as Massachusetts, Connecticut, and Georgia, the incongruous situation of the members of the family suing each other for negligence has been met by adopting the rule whereby the host is liable to the guest only where gross negligence is found. Let it be said now that the plaintiff in the instant case is not suing a member of her family, but her right to recover would be judged by the same rules as if she were so doing. Be that as it may, "One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence." Capers v. Martin, supra.

The effect of the plaintiff's argument is that the maxim res ipsa loquitur may be invoked to make out a prima facie case, irrespective of what degree of negligence the plaintiff is required to establish. If this be correct, the rule in Georgia requiring proof of gross negligence in guest cases, which necessarily forbids recovery for ordinary or slight negligence, would be of no effect whatever in many cases where ordinary negligence, at most, existed. Palmer Brick Co. v. Chenall, supra. Thus, the plaintiff by the very paucity of her proof and by her reliance upon this doctrine could circumvent our gross-negligence rule and recover upon a showing of negligence no greater in quantity or effectiveness than would be necessary if we had adopted the ordinary-negligence rule instead of the gross-negligence rule now in force in this State. Lincoln v. Quick, supra. The gross-negligence rule in force in Georgia places the burden on the plaintiff to establish a degree or extent of negligence which can not be met by a mere inference that some negligence existed even though it be ordinary negligence. The rule of res ipsa loquitur applies only where the plaintiff does not know what caused the accident, and the cause, although unexplained, does not happen according to the common (ordinary) experience of man if due (ordinary) care has been exercised on the part of the defendant, and the general circumstances of the case, thus unexplained, justify the inference of negligence. Lincoln v. Quick, supra, 437. Generally speaking, the maxim res ipsa loquitur is based on the relationship of the ordinary person (that is an ordinarily prudent person) to the common orordinary experiences of life. 37 Words and Phrases, 336; Breenv. N. Y. Cen. c. R. Co., supra. As respects liability for negligence under the doctrine of res ipsa loquitur for injury inflicted by the driver of an automobile, where all the instrumentalities which could likely have caused the injury were under the exclusive control and management of the driver, yet the accident is unexplained, the inferences which can be drawn from the circumstances attendant upon the accident extend only to the "scope of ordinary experiences" (which are the common experiences of ordinary men, that is, ordinarily prudent men, under the same or similar circumstances), being coextensive with "the permissible inferences," are the proper measuring rod by which it can be determined whether the inference or inferences were permissible under the rule of res ipsa loquitur. Negligence under this maxim is a failure to exercise "that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." (Italics ours.) Code, § 105-201. Of course proof of ordinary negligence includes the proof of slight negligence, but proof of ordinary negligence does not include proof of gross negligence which is the higher degree thereof. In this State the plaintiff is required to prove not only negligence but gross negligence in a guest case. This very requirement would seem to imply the necessity of proving how the accident occurred, and that certain facts existed which, in themselves or of their own natural force, explain and make clear the presence ofgross negligence as distinguished from the lower degree ofordinary negligence. While the rule of evidence expressed in the maxim res ipsa loquitur may be invoked to make out a prima facie case of negligence, ordinary negligence, which includes slight, as the greater includes the less, yet it is insufficient in itself to make out a prima facie case of gross negligence; and since in Georgia gross negligence must be established in order for the guest to recover from the host, even if the maxim res ipsa loquitur is applicable under the evidence in the instant case to make out a prima facie case of ordinary negligence, yet it is not applicable with respect to the amount and degree of such negligence so as to make out a prima facie case of gross negligence, and under the rules of evidence applicable to the instant case no gross negligence on the part of the defendant was shown. Therefore the judge did not err in sustaining the motion for nonsuit. 9 Blashfield's Cyc. of Auto. Law, 335 (21), § 6046; Yearwood v. Yearwood, 45 Ga. App. 203 (164 S.E. 105); Oast v. Mopper, 58 Ga. App. 506 (5), 508 (199 S.E. 249).

In Capers v. Martin, supra; Duncan v. Ross, 56 Ga. App. 394 (192 S.E. 638); McCord v. Benford, 48 Ga. App. 738 (173 S.E. 208); McLain v. Atlantic Ice Coal Cor.,54 Ga. App. 103 (187 S.E. 153), Blood v. Adams, 269 Mass. 480 (169 N.E. 412); Cooper v. Kellogg (Cal.), 31 P.2d 797; Cormier v. Williams (Fla.), 4 So.2d, 525; Hartley v. Berg,145 Or. 44 (25 P.2d 933), relied on by the plaintiff, the courts do not mention the doctrine of res ipsa loquitur, but they seem to us to place their decisions on the theory that the evidence if believed would itself explain the specific cause of the accident, and the maxim, being unnecessary, was not referred to as applicable.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.