13 S.E.2d 110 | Ga. Ct. App. | 1941
The court erred in overruling the motion for new trial.
1. The plaintiff in error abandons the general grounds of his motion for new trial, and insists on the special grounds of his amended motion, the first of which complains of the following charge of the court: "Now, gentlemen, the legislature of Georgia has passed certain laws with reference to the operation of motor vehicles on our highways, and any violation of these laws is negligence per se, is negligence as a matter of law, and I will read you the laws which are applicable in this case — the motor-vehicle laws. The law says no person shall operate a motor vehicle upon any public street or highway at a speed greater than is safe and reasonable having due regard for the width, grade, character, traffic, and common use of such street or highway, or so as to endanger life or limb or property in any respect whatsoever, but said speed shall not exceed that tabulated below; and below is tabulated the speed of automobiles with pneumatic tires, weight less than 10,000 pounds *343 forty miles per hour. That was the law which was in force at the time this occurrence happened."
It is admitted by counsel for the parties that the law in force at the time of the accident with reference to the speed of motor vehicles provided that the speed limit for such vehicles should be fifty-five miles per hour, rather than the forty-mile per hour limit as charged by the court. It is contended by the defendant in error that even though the court charged the wrong law to the jury, such charge was harmless because of the fact that the petition did not charge negligence per se, and that since the petition did not charge negligence per se that charge was not authorized by the pleadings, and for the further reasons that the court later gave in charge the principle that the plaintiff could only recover on one or more of the allegations of negligence charged in the petition and no other, and that the plaintiff sought recovery for the negligence of the defendant in driving on the wrong side of the road.
We are unable to agree with this contention. In order for the plaintiff to recover it is not necessary that he allege in his petition that the defendant has been guilty of negligence per se. It is sufficient that he make a general allegation of negligence. "We know of no distinction recognized by law whereby the plaintiff's right to recover is affected in a greater or less degree according to whether negligence on his part follows as a matter of law from a fact proved, or whether the question of negligence as well as the fact itself is a matter to be determined by the jury. The difference between negligence per se and other negligence is in the mode of establishing negligence. In the one case the law itself establishes negligence when a certain act or omission is proved, while ordinarily the question whether a proved fact constitutes negligence is left to the determination of a jury. Whether negligence be established in the one mode or the other makes no difference in its legal effect when established."Central of Georgia Railway Co. v. Larsen,
2. There is no merit in the second ground of the amended motion.
Judgment reversed. Stephens, P. J., and Sutton, J.,concur.