Camp v. Emory University

95 Ga. App. 442 (1957) 98 S.E.2d 66

CAMP
v.
EMORY UNIVERSITY.

36601.

Court of Appeals of Georgia.

Decided April 2, 1957.

Carter Goode, William Hall, for plaintiff in error.

James A. Branch, Thomas B. Branch, Jr., contra.

TOWNSEND, J.

1. Facts which are consistent with either of two opposing theories prove neither. Woodruff v. American Mut. &c. Ins. Co., 67 Ga. App. 554 (21 S.E.2d 298); Weathers Bros. Transfer Co. v. Jarrell, 72 Ga. App. 317 (33 S.E.2d 805); Chevrolet-Atlanta Division, General Motors Corp. v. Nash, 81 Ga. App. 671 (59 S.E.2d 681); Martin v. Medlin, 83 Ga. App. 589 (64 S.E.2d 73).

2. Where it cannot reasonably be determined from the plaintiff's evidence whether or not the defendant's negligence caused the injury complained of, a nonsuit is proper. Advanced Refrigeration v. United Motors Service, 71 Ga. App. 576 (31 S.E.2d 605). "``When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion but also render less probable all inconsistent conclusions.' Georgia Ry. & El. Co. v. Harris, supra [1 Ga. App. 714, 57 S.E. 1076]." White v. Executive Committee of Baptist Convention, 65 Ga. App. 840, 842 (16 S.E.2d 605). In the present case, the negligence alleged is an improper injection of a hypodermic needle into the plaintiff's leg in such manner that a drug being administered at the time failed to flow into the vein, where the consequences would have been beneficial, but on the contrary the insertion of the needle was into the fleshy part of the leg, where the consequences were injurious. No witness testified that the needle was inserted into tissue rather than into a vein, and the statement of the medical witness to the effect that if it had happened he would have seen it, is negative evidence to the contrary having some probative value. The plaintiff seeks to create an inference that the needle was improperly inserted from opinion testimony that if such were the case the results which in fact occurred would be likely to happen. The same witness, however, testified that some persons were hypersensitive to the drug and would have an unfavorable reaction even when it was properly administered. Accordingly, construing the testimony in favor of the plaintiff the circumstances shown do not render the conclusion that the defendant was negligent any more probable than the conclusion that the plaintiff was hypersensitive to the drug. This being so, there was no case to take to the jury, and the judgment of nonsuit was without error.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.