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Action for damages. Richmond Superior Court. Before Judge Kennedy. July 27, 1959.
FELTON, Chief Judge.
The court erred in charging the jury on the doctrine of res ipsa loquitur and in denying the defendant's motion for a new trial.
Mrs. Mamie Oldham brought suit in Superior Court, Richmond County, Georgia, against Quick Shops, Inc., trading as Brigham & Brigham's Super Markets, as first defendant, and C. C. Reynolds as second defendant, alleging that on August 22, 1957, she was entering a grocery store operated by the defendant, Quick Shops, Inc. t/a Brigham & Brigham's Super Markets in a Building owned by the defendant, C. C. Reynolds, for the purpose of purchasing groceries and other items for sale by the defendant, Quick Shops, Inc. That as petitioner approached the entrance way, she reached forward with her right hand to open the right-hand door and took hold of said door by the handle provided and pulled came towards her, to her right; that when said door was opened sufficiently wide for her to enter said store, petitioner stepped forward toward the entrance way of said store with her left foot at which time said right-hand door pulled out of her hand and sprung back toward the store with terrific speed and force, catching the great toe of petitioner's left foot under the door, causing the injury which plaintiff received; that said door is provided with a spring type implement at the top of said door near the far right-hand side of said door which is designed to keep said door closed except when in use, and also designed to close said door after it is opened; that the faulty operation of said springing instrumentality is the direct and proximate cause of petitioner's injuries. Plaintiff then detailed the operation of the springing instrumentality and further alleged that at and during the time of the occurrence set out in the petition, the spring in the instrumentality had been tightened too tightly and the valve spring on the door cylinder was not fixed in such a manner that it would cause the door, with the spring in its tightened condition, to close slowly; that the valve screw was negligently placed in such a position that it did not properly control the speed with which the door closed; that consequently said instrumentality was maintained on the aforesaid door in a negligent, careless and dangerous manner. That both the first and second defendant knew of this dangerous condition. The plaintiff further alleged that the first defendant knew that the aforementioned spring on said door was in a dangerous condition and was creating a hazard to those who lawfully used it; that even though he knew of such condition, he continued to in-
vite people into said entrance way of the aforesaid premises while knowing the dangerous condition and was negligent while knowing the dangerous condition of said door, in not notifying those people who were invited into first defendant's store for the purpose of trading with the first defendant. That the first defendant was further negligent in failing to use ordinary care to keep said premises and the approaches thereto safe; that notwithstanding this knowledge on the part of the first defendant, he continued to operate said store and invited the general public into the store, including your petitioner, without warning them of the dangerous condition. That the first defendant knew that the spring on said door as hereinabove described had been installed and was being maintained in such a manner that when said door was opened for the purpose of entering said store, terrific force and pressure was put on the aforesaid springing instrumentality designed to keep the door shut and to apply pressure on said door to keep it in a closed condition, when said door was opened, this instrumentality which was negligently maintained, caused pressure to be placed on the laid springing instrumentality and on the said door and caused it to close and shut with tremendous force and speed which was the direct and proximate cause of plaintiff's injuries. The defendants, Quick Shops, Inc. t/a Brigham & Brigham's Super Markets and C. C. Reynolds, by their answers denied the material allegations of the petition. The case went to trial on November 20, 1958, and the plaintiff, Mamie Oldham, sought to prove the allegations of her petition by the following testimony: She testified that she went to Brigham's store to trade with them and she started to go in to get some groceries; that she caught the door with her right hand and started to go into the store; that as she opened the door wide enough to enter, and before she could get out of the way of the door, it came back and caught her foot -- the door caught her foot and hurt it; that when she approached the door of Brigham's Store, it was closed; that she opened the door wide enough to enter and stepped forward with her left foot, which was the foot that was injured; that the door did not strike her foot when she opened it and she did not know what caused the door to come closed -- it came plunging back; that she still had it with her hand and when it came back it knocked her hand away and the door caught her in it; that after she called Dr. Wylie, she continued shopping and picked up a couple of items.
Killebrew. I do not think it is dangerous for a small lady like the plaintiff to try to handle the door, nevertheless, I wanted lighter doors installed."
W. E. Bell, witness called on behalf of the plaintiff, testified as follows: "I am familiar with the type door stops shown in the upper right-hand corner of the plaintiff's Exhibit No. 1. I think I have installed all familiar brands. The purpose of the type door stop on that picture [Plaintiff's Exhibit No. 1] is to automatically close the door when released by your hand and it closes slowly. It is possible to adjust these to regulate the speed of the closing of the door. If properly installed and properly maintained it will close slowly; if they are improperly installed and maintained, it would probably knock your feet out from under you. The weight of the door affects these door stops."
The jury returned a verdict in favor of the plaintiff and against both defendants for $1,250. The court granted a new trial to C. C. Reynolds, the owner of the building involved. Quick Shops, Inc., excepts to the denial of its amended motion for a new trial.
There was no evidence that it had even given trouble before. The testimony of Mr. Dye does not by any stretch of the imagination show that the doors were not suited to the use to which they were put or that they, though heavy, were dangerous. The evidence does not authorize the application of the doctrine of res ipsa loquitur for the reason that mechanical devices, such as the one here involved, get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone. Any other ruling would make the occupier of premises an insurer. The principal basis for application of the rule of res ipsa loquitur is that the occurrence involved would not have occurred without negligence, and the negligence is charged to the person in exclusive control of the instrumentality. See Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (2) (64 S. E. 93); Spruell v. Ga. Automatic Gas Appliance Co., 84 Ga. App. 657 (67 S. E. 2d 178); Chenall v. Palmer Brick Co., 117 Ga. 106 (2) (43 S. E. 443). A number of foreign jurisdictions support this conclusion under similar facts. While we do not agree with all of the reasoning in all of them we think citation of them is in order: Ferina v. First National Bank, 72 Ohio App. 109 (51 N. E. 2d 36); Todd v. S. S. Kresge Co., 303 Ill. App. 89 (24 N. E. 2d 899); Home Public Market v. New Rock, 111 Colo. 428 (142 P. 2d 272); Watkins v. Taylor Furnishing Co., Inc., 224 N.C. 674 (31 S. E. 2d 917).
2. The court erred in injecting into the case by his charge the issue whether the door was negligently constructed or installed in the absence of evidence to authorize it.
3. For the reasons stated in division 1 the court erred in charging the jury on the doctrine of res ipsa loquitur.
4. The alleged defects in the charge as complained of in grounds 6 and 7 of the amended motion for a new trial will not be passed on as the alleged errors will not likely recur on another trial.
5. It is not necessary to pass on the question whether the grant of a new trial to the codefendant required the grant of a new trial as to Quick Shops, Inc.
The court erred in denying the motion for new trial.
Killebrew, McGahee & Plunkett, Paul K. Plunkett, Clarence L. Powell, contra.
Fulcher, Fulcher, Hagler & Harper, William C. Reed, for plaintiff in error.
Saturday May 23 00:52 EDT

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