dissenting. I concur in the rulings stated in divisions 1(c), 4, 5, 6, 8, 9, and 10 of the majority opinion of the court, but dissent from the rulings made .in divisions 1(a), 1(b), 2, 3, and 7 of the opinion for the following reasons.
The Code, § 84-924, provides: “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” I think that this section is also applicable to a physician who specializes in the administering of x-ray treatment, and, as shown by citations in the majority opinion, the standard prescribed by the Code section, “when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances is ordinarily employed by the profession generally.” Furthermore, the phj^sician must not only possess the requisite care *826and skill, but must exercise these qualifications. I think, however, that under the circumstances of the present case the charge complained of, even if it could be said to have been technically inaccurate in the use of the expression, “in this locality,” was harmless to the plaintiff. The word “generally” in the expression, “employed by the profession generally,” does not seem to have been construed by the appellate courts of this State. It was used by the courts in defining what is meant by “reasonable care and skill,” as used in the Code, and it is contended by the plaintiff in error that, as it has been held by the courts of this State that the care and skill must be that ordinarily employed by the profession gen~ erally, the test would not be that care and skill used by physicians in a given locality, as charged by the court in the present case, but is that care and skill which must be ascertained from a wider and more general practice of the profession. It could not be reasonably contended that the investigation should determine the universal practice of physicians. I think that a reasonable construction of the word “generally” would be that it would not necessarily have to refer to the practice of the profession geographically, but could be descriptive of a practice which is engaged in by physicians in a substantial aggregate in one area. The care and skill exercised by physicians in a populous community like New York or Chicago or Philadelphia would afford a better basis for determining what is a reasonable exercise of care and skill than might be ascertained from an investigation of the practice of physicians in an area many times more extensive but containing only a small fractional pronortion of a metropolitan population. Judicia1 cognizance may be taken of the fact that Atlanta is now a metropolis, and if a given physician in that city exercises the care and skill which is ordinarily employed by physicians therein, it may fairlv be said that he measures up to the requirements laid down by the statute and by the interpretation by the appellate courts of this State in stating that the reasonable care and skill must be that which is ordinarily employed by the profession generally under similar conditions and like circumstances.
It is further contended by plaintiff in error that such portion of the charge was error, in that the court thereby instructed the jury that the defendant was to be absolved if he brought to the exercise of his profession either the care'or the skill or the diligence *827ordinarily employed by the profession, whereas under the law the physician must both possess and exercise a reasonable degree of care and skill. The objection is based on the use by the court of “and/or” between the words “care” and '■“skill,” immediately after stating that “this standard of care, this degree of care and skill or diligence is defined in law to be,” etc. (Italics mine.) The Code prescribes what must be exercised, namely, care and skill, not the utmost but “a reasonable degree” thereof. The effect of the court’s charge was that whether care be under consideration, or skill be under consideration, each of those things, whether singly or taken together, must in quality or nature be of that standard which is employed by the profession, etc. In the sentence immediately preceding that to which objection is taken, the court correctly charged what the physician must bring to the practice of his profession. I do not think that the objection was well founded.
The second division of the majority opinion deals with the fifth special ground of the motion for new trial which is similar to the objection dealt with in division 1 (a) of the majority opinion. This ground is, in my opinion, without merit for the reasons mentioned by me in division 1 (a) of this dissenting opinion.
Ground 6 complains that the charge of the court, that the plaintiff would not be entitled to recover if, by the exercise of ordinary care, she could have avoided the consequences of the defendant’s negligence, if any, was inapplicable to the facts of the case, and that such charge was, therefore, error. The plaintiff alleged in her petition that she was free from negligence and could not, by the exercise of ordinary care, have avoided the consequences of the defendant’s alleged negligence. The defendant in his answer denied such allegations. In this state of the pleadings, and there being evidence that idiosyncrasy or Irypersensitiveness could not be determined, in advance of x-ray treatment, even by a physician or specialist, the charge of the court in the respect mentioned was not error.
Ground 10 complains that the court erred in permitting counsel for the defendant to read to the jury, for the purpose of impeachment, certain portions of the testimony alleged to have been given in plaintiff’s deposition before a court commissioner, it being contended that such testimony was inadmissible because there was no proof of her having made the answers shown in the deposition, *828and that she, in fact, denied making some of the answers. It is shown, by the record that the deposition bore the certificate of the commissioner that it had been taken in a named cause, and that the plaintiff was then represented by one of her counsel in the present case, that the deposition was taken in his law office on January 19, 1937, and that the commissioner certified that the questions and answers were taken down and reduced to Avriting by him. It was shoAvn that the deposition AAras filed in the superior court of Fulton County in February, 1937, and under an order of court Avas opened in open court on January 4, 1938, the day after the present case went to trial. It thus appears that the deposition Avas filed in and came from the proper custody, and must be taken prima facie as being a correct report of her testimony. In the absence of a showing of fraud or irregularities in connection with the taking and return of the deposition into court, the deposition Avas admissible in the present case, not as evidence, but for the purpose of impeachment. Moreover, the plaintiff shows by her testimony in the present case that she did give her deposition before the commissioner at the time named, contending only that some of the purported ansAArers were not made by her, thereby raising an issue for the jury as to Avhether or not such answers, prima facie deemed to have been made, Avere in fact giAren by her at the taking of the deposition.
Furthermore, I am of the opinion that under the laAAr and the evidence the verdict of the jury in favor of the defendant was authorized. The evidence adduced on the trial of the case was lengthy and included much data as to the use of x-ray in the treatment of skin diseases, but need not bo set forth in detail. The jury AAras authorized to find that the plaintiff in November, 1935, Avas treated by the defendant for an eruption on her chest, shoulders, arms, and body; that she AA'as given internal medication and a lotion was prescribed and used during the months of November and December of that year; that in January, 1936, she again consulted the defendant, and x-ray treatment was advised for what, according to the defendant's testimony, he diagnosed as dermatitis or inflammation of the skin; that on January 7, January 11, and January 15, he gave her x-ray treatment of the" skin of her chest with an exposure of two minutes on each occasion, each dosage consisting of one-seventh of an erythema, that is, one seventh of *829a sufficient quantity of radiation to produce a mild but harmless redness of the skin. The plaintiff testified that on the third occasion she -received treatment for three minutes and fifty seconds, and that a third-degree burn resulted therefrom and she was injured in certain particulars; that after the second treatment her throat and mouth became dry and she promptly so informed the defendant, but that he stated that she was probably catching the mumps, and that he was negligent in giving her the third treatment of x-ray under such circumstances. The defendant testified that the dryness complained of had no connection whatever with the x-ray treatment previously administered, and that the condition of her mouth and throat in no way contributed to the burn or x-ray changes on her chest subsequently. The uncontradicted evidence was to the effect that even if the defendant administered x-ray treatment for a period of three minutes and fifty seconds on the third occasion, in addition to the treatment on the two previous occasions, the dosage was not of itself excessive; that the defendant had the necessary knowledge and skill in x-ray treatment, and that such treatment is generally recognized by the profession as being proper.
Without setting forth all the evidence in detail, it is deemed sufficient to say that the jury was authorized to find that none of the allegations of negligence was supported. As to allegation designated by (a) in the statement of the pleadings, the undisputed testimony was that there is no way of determining in advance the quantity of x-ray radiation that a patient might receive with impunity; that some individuals, in rare instances, have an idiosyncrasy or hypersensitiveness to x-ray, and that it would be imprudent and unprofitable to attempt to test for such allergic nature by giving an advance or preliminary dosage, because the effect of radiation is cumulative; (b) it was shown that three treatments in the intervals employed by the defendant would not be inconsistent with good precaution and practice; (c) it was shown that even if the defendant had exposed the plaintiff to x-ray treatment for three minutes and fifty seconds on the third occasion, which he denied, no harm would have come to the plaintiff unless she had been idiosyncratic or hypersensitive, a condition occurring only in excep-. tional cases among patients; (d) the defendant denied that he burned, by the treatment administered, the plaintiff’s skin on her *830chest, neck or chin, and asserted that the burn was due to her idiosyncratic condition, unknown to him and incapable of determination in advance; (e) it was shown that the requisite care and skill in x-ray treatment did not require the use of a quantity or quality meter to measure the radiation being given a patient; that it was formerly the practice to endeavor to compute by a formula the quantity of radiation given off by an x-ray machine, but that now, as a machine is used, it is so set or calibrated that its release of radiation is automatic or fixed, so that one administering x-ray treatment is concerned with only two variable factors, one the distance from the x-ray tube to the skin of the patient and the other the time of exposure. It was shown that the machine used by the defendant was of modern and efficient type, the kind generally in use in Atlanta and by the profession generally, and that it was inspected with proper frequency by an expert engineer, a graduate of Georgia Tech, who testified that he had never found it out of order, and that it was in correct adjustment and condition at the time of the treatment administered to the plaintiff by the defendant, and that the only change it had undergone was a technically slight decrease of radiation, because of the gradual reduction of tube efficient, although the machine was properly calibrated or adjusted; (f) there was evidence that the treatment was proper, and used by the profession generally, for the skin trouble with which the plaintiff was afflicted; (h) the undisputed evidence showed that it was unsafe for a physician, or x-ray technician to remain in the room where radiation was being given off, inasmuch as the cumulative effect of the radiation would be dangerous to such person, but that the defendant’s office arrangements were such as to enable him to watch from a small room, only four feet away from the head of the patient receiving the x-ray treatment, there being a lead-lined wall between the two rooms, and the defendant looking at the patient through a small lead-glass window in the wall, and it was shown that the defendant did in fact watch and observe the patient by such method in the present instance, and that at the end of two minutes he personally caused the current to be cut off.
The defendant testified that when the patient came to him she stated that she had never had any x-ray treatment previously, but there was evidence that she had been injured in an automobile *831accident and had had an x-ray examination of her chest. While, as above shown, there was evidence that the manner in which the defendant treated the plaintiff was, as to care and skill, that used by the physicians of Atlanta, a metropolitan city, and it is contended by the plaintiff that the care and skill to be employed is that which is exercised by physicians generally, not merely in Atlanta, the plaintiff, upon whom rested the burden of proving negligence, offered no evidence that the treatment, as administered, was not in accordance with the exercise of care and skill by physicians generally.
It is further contended by the plaintiff in error that the jury should have applied in this case the doctrine of res ipsa loquitur and should have found thereby that the defendant was negligent. This doctrine is not applicable merely because of the fact of injury. It is applicable only where "there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the'person charged with furnishing, or maintaining the instrumentality causing the accident been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause.” (Italics mine.) Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 (190 S. E. 879). In the cited case it was further held that it must be shown by the plaintiff in the first instance “that the accident was of a kind which in the absence of proof of some external cause, does not ordinarily happen without negligence.” (Italics mine.) In the present case it could not be said that there is nothing to indicate an external cause. The evidence shows that an external cause was indicated by the idiosyncrasy or hypersensitiveness of the plaintiff, as positively testified by the defendant and by no one denied, and, accordingly, it could not be said that “the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and coulcl not have taken place had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty,” etc. (Italics mine.) If the plaintiff was idiosyncratic or hypersensitive, the *832injury could have happened as well from that condition as from the use of the radiation as administered by the defendant. The thing, that is, the injury, does not “speak for itself” that the use of the machine caused the damage. “Where there is some intervention or intermediary cause which produces or could produce the injury complained of, the doctrine of res ipsa loquitur is not applicable.” Floyd v. Swift & Co., 59 Ga. App. 154 (200 S. E. 531). While the doctrine was not applicable in the present case, the record shows that the court substantially charged that the jury might, if they saw fit, apply such doctrine.
For-reasons shown above it is my opinion that the judgment overruling the motion for new trial should be affirmed. Accordingly I dissent from the judgment of reversal by this court.