1. (a) Negligence, like any other fact, may be proved by circumstantial evidence.
(b) When a reasonable mind may accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on the finding is authorized.
2. Admissions in an answer, although later stricken by amendment, when put in evidence constitute evidence sufficient to create a jury issue as to whether the withdrawn admissions in the answer or the evidence to the contrary is true.
The defendant below, as plaintiff in error, brings exceptions to the judgment of the trial court overruling its motion for judgment notwithstanding the verdict.
The plaintiff testified that as he met another tractor-trailer going in the opposite direction "something" knocked him out of the seat; he saw nothing strike his truck; as he was meeting the other truck "something came off of it and knocked the heck out of me"; the road was straight, level and otherwise clear of traffic and there was nothing to obstruct the view for hundreds of feet which the lights of the two vehicles afforded although it was dark and at night; he and a city policeman found a wheel on the side of the road of the type used on a large truck or trailer; a large black mark ten or twelve inches wide, which looked like a big tire had spun, was found on the highway to the left of the direction the plaintiff was traveling; the wheel was found on the side of the road seventy-eight steps south of the tire mark; the wheel had a 20-inch rim and a tire tread 10 or 12 inches wide; the plaintiff did not know of his own knowledge when the black mark was made nor what made it. One witness, W. C. Cradie, a driver of another tractor-trailer unit, testified that he saw plaintiff's vehicle stopped by the side of the road and stopped to investigate. The stalled vehicle was the plaintiff's unit. Cradie testified that he and the plaintiff found a set of license plates in the road; the plaintiff asked him to drive up the road and look for a unit that had a tire missing on it; he drove some 12 to 15 miles to the next truck stop at Ranger, Ga., and found a vehicle with a wheel missing from the left rear outside trailer wheels; he and the driver of that vehicle came back to where the wheel was found and the other driver identified it as his tire; the plaintiff gave the set of license plates which had been found on the road to the driver of that vehicle; the driver of the vehicle with the missing wheel stated the license plates were his and that they were knocked off when the wheel came off; the driver identified his vehicle and the tire on the side of the road as belonging to Arnold Services, Inc., the defendant. The evidence shows that the plaintiff's vehicle was damaged in that four bolts which attached the bumper to the frame of the truck were all sheared out of place and the drive axle was knocked back several inches from where it should have been.
1. "Negligence may be shown by circumstances as well as by direct testimony. If, considering all the surroundings and accompanying circumstances, an event is such 'as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence.' " McCann v. Lindsey, 109 Ga. App. 104 (135 SE2d 519)
, certiorari denied. It is accepted generally as settled law that negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony. Prosser, Torts, 2d Ed. p. 200, citing Wigmore, Evidence, 3rd Ed. 25. Thus, when a reasonable mind may accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on the finding is authorized. As this court apprehends it, the evidence recounted in the factual summary is sufficient to sanction the verdict in this case.
The petition specifically charged the defendants with negligence per se in operating the trailer-tractor vehicle on a public highway when it was not in such safe mechanical condition as not to endanger any person upon the highway in violation of Code Ann. 68-1723. In the case of Beck v. Wade, 100 Ga. App. 79
, 81, 82 (1) (110 SE2d 43
), Judge Townsend in construing Code Ann. 68-1723 along with other provisions of Code Ch. 68-17, stated that its terms were "sufficiently broad to cover any other equipment on a motor vehicle which, being itself defective, renders the vehicle dangerous to others. An automobile is equipped with wheels, and if a wheel is so defectively attached to the body that it flies off, injuring another, it would seem to come within these sections [Code Ann. 68-1701, 68-1723]." Judge Townsend then explained that while previous knowledge of the unsafe mechanical condition of the vehicle was essential to uphold criminal liability, civil liability could be imposed by a mere preponderance of the evidence.
Although counsel discourse with obvious conviction on either side of the problem as to whether the evidence rule of res ipsa loquitur is applicable under the existent facts, we prefer to apply as appropriate the logic of the great Judge Powell who wrote in response to a similar issue that "Without frightening any of the brethren of the profession by saying that it was a case of res ipsa loquitur (for this phrase seems to be a bugaboo to some members of the bar), we will say that the circumstances were such as clearly to prove, according to all the rules of circumstantial evidence," that the wheel from the defendant's trailer did come off as it passed the plaintiff's vehicle and it did cause the damage in striking the plaintiff's vehicle which the jury found. This premise is authorized by the pleadings and the evidence. See Hubbard v. Macon R. &c. Co., 5 Ga. App. 223, 225, 226 (62 SE 1018).
2. Ancillary contentions urged by the defendant in this case are that the tractor-trailer, identified as the unit to which the wheel found beside the road belonged, was not owned by defendant nor was the driver its agent. The president of the defendant company offered positive testimony in support of these contentions. The plaintiff, however, in response to this testimony introduced in evidence the paragraphs of his petition which alleged that the vehicle in question, at the time and place, was being used, maintained and operated on the business of the defendant and that the driver was the agent of the defendant and portions of the defendant's original answer which admitted each of these allegations.
Although the admissions in the answer were later stricken by amendment, the withdrawn pleadings when put in evidence constituted evidence sufficient to create a jury issue as to whether the withdrawn admissions in the answer or the evidence to the contrary was true. Richmond County v. Sibert, 218 Ga. 209
, 212 (126 SE2d 761