26 S.E.2d 306 | Ga. Ct. App. | 1943
Lead Opinion
The verdict was authorized by the evidence; and no error of law appearing the court did not err in overruling the motion for new trial. The judgment on the main bill of exceptions being affirmed, it is unnecessary to pass on the assignments of error in the cross-bill of exceptions.
The evidence showed that the plaintiff's daughter was riding in the automobile of the defendant as a guest of his daughter who was driving the car upon a public highway, and that the car in some manner left the highway and ran into a ditch and then into a tree, and the plaintiff's daughter was killed. There was testimony for the plaintiff as to the speed of the car, estimated from the facts which they found after reaching the scene of the accident, but no witness estimated it as high as 60 to 70 miles an hour, though one witness estimated that, in his opinion, it must have been traveling at a minimum of 50 miles an hour. While there was direct evidence that a puppy was in the car with the two young ladies, the evidence is wholly lacking in probative value to sustain the allegations of the petition that at the time the car left the road, or at any time, the driver took her eyes from the road or leaned over to pick up a puppy from the floor of the car. The driver testified: "I was driving about 25 to 30 miles an hour. The last thing I remember we were humming and riding down the road. We were not talking or anything before the accident happened. Helen Edwards had a puppy in her lap. Nothing happened to the puppy while I was driving. I did not have my hands on the dog at all. I did not take my eyes off the road to look at the dog. . . I just don't remember anything happening after we passed a certain place on the road. . . I became unconscious, that is the reason I lost control of the car *580 and went into the ditch. . . At this point marked on the photograph I just went blank. I did not feel that coming on before it happened. It happened just like that" [snapping fingers]. Her mother testified that at the time she was "sick" in a menstrual way. While certain witnesses testified that the defendant made statements to them after the accident as to its cause, that it was caused by the driver leaning over to pick up the puppy which had jumped or fallen from the seat, a careful reading of such evidence shows that the defendant was not representing that his daughter had made such a report to him about picking up the puppy, but that what he stated was only a surmise or an inference which he drew after visiting the scene of the wreck. There was also documentary evidence as to statements made by the defendant in written reports to an insurance company in connection with his claim for damage to the automobile. The following appeared therein: "Carolyn states to us that she must have slipped over a little too far to the right and got in some gravel which pulled the car further to the right. They had a puppy in the car, and it might have been that the dog attracted their attention, momentarily causing her to pull over to the side of the road." It will be observed that in this report the defendant was not stating that his daughter had informed him that she leaned over to pick up a puppy or that her attention had been attracted to it. He reported that "they had a puppy in the car" and then draws a conclusion which is not of any probative value but a mere conjecture of his own: "It might have been," etc. Upon the conclusion of the evidence and the charge of the court the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial upon the usual general grounds, and by amendment added several special grounds. The court overruled the motion, and the exception here is to that judgment. The verdict was authorized by the evidence, and in fact the plaintiff in error concedes in the brief of her counsel that a verdict might properly have been rendered for either party, and has abandoned the general grounds and insists only on the special grounds hereinafter dealt with, for a proper consideration of which the above statement of facts has been set forth.
1. After the jury had deliberated about two hours, they returned to the court-room and requested the court to define again *581
"gross negligence;" whereupon the court charged: "In general, slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. The absence of such care is termed gross negligence. If one should exercise that degree of care which every man of common sense, howsoever inattentive he may be, exercised under the same or similar circumstances, to prevent injury to another, or to another's property, he would not be guilty of negligence in failure to exercise slight diligence." It is contended, first, that the court erred in stating that under the circumstances recited the failure of one to use slight care would be negligence instead of stating that it would be gross negligence. We find no merit in this contention. The jury had requested a recharge on "gross negligence," and could not reasonably be said to have understood that the court was informing them on any negligence except gross negligence. It is contended, secondly, in the first special ground of the motion for new trial, that in using the expression "howsoever inattentive he may be" without some modification thereof, under the special facts of the case wherein the plaintiff's right to recover was predicated on alleged inattentiveness of the driver of the car, the court committed prejudicial error as is shown by the fact that the jury returned in a few minutes after being recharged, and that it practically amounted to the direction of a verdict against the plaintiff. This objection has been carefully considered but it can not reasonably be said that the charge unduly influenced the jury in making its verdict. The expression "howsoever inattentive he may be" does not relate to the act of the driver of the car as of the time of the accident in the present case, but characterizes the nature of habit of men who, though of common sense, are by habit or custom generally careless or inattentive in their conduct, and the law recognizes that nevertheless such men do exercise some degree of care, however slight, under certain facts and circumstances and prescribes as the test of gross negligence the failure to exercise that slight diligence or degree of care which "every man of common sense, howsoever inattentive he may be [generally] exercises under the same or similar circumstances." See Harris v. Reid,
2. The second special ground of the motion for new trial complains that the court erred in refusing a request to charge as follows: "I charge you that it is the duty of any person operating an automobile upon the highways of this State to keep a lookout ahead, and I charge you that where such person is operating an automobile at a high rate of speed but fails tolook ahead and observe the course of the automobile, but giveshis attention to other things within the car, and that whilebeing thus steered the automobile collides with a tree and as a result of the collision a person riding as a guest in the car is injured, the inference is authorized that the person driving the car under such conditions is guilty of gross negligence in failing to keep such a lookout ahead." (Italics ours.) Even if not otherwise objectionable, it would have been error to so charge, inasmuch as the italicized language is too broad to be said to be adjusted to the evidence, assuming but not conceding that the jury would have been authorized to find that the driver of the car momentarily took her eyes from the road and leaned over to pick up a puppy which had jumped or fallen from the front seat.
3. Special grounds 3 and 4 of the motion for new trial complain of the refusal of the court to give certain requested charges to the jury, but are without merit as not being adjusted to the evidence.
4. Ground 5 assigns error on the refusal of the court to give a requested charge that "the speed at which an automobile is being operated may, like any other fact, be established by circumstantial evidence." The charge of the court as a whole was full and fair and was adjusted to the pleadings and the evidence, and *583 under the facts and circumstances of the case, no harmful error is shown by this ground of the motion.
5. The court charged the jury as follows: "As a jury, gentlemen, you take this case and apply these rules of law to the evidence which you have listened to, and as fair-minded, impartial jurors. with but one purpose in mind, and that to do right between the parties, let your verdict speak the truth." It is contended in the sixth special ground of the motion for new trial that the charge was error in that by the use of the words, "the evidence which you have listened to," the court excluded from the jury's consideration the documentary evidence which, it is contended, contained admissions by the defendant that the accident in question was caused by the inattentiveness of the driver of the car. This ground is without merit. The court, in its charge, fully explained to the jury that they should consider all the evidence in making up their verdict, saying particularly in a portion of the charge: "You look to the evidence in this case. You heard all the testimony of all the witnesses in this case who testified on the stand, and certain documentary evidence has been introduced in evidence, photographs, etc., and you will consider all of the evidence of every kind in determining what you believe to be the truth of the transaction and in that way first determine how it occurred," etc. It could not reasonably be said that the jury conceived the idea that they should consider only the verbal testimony in the case. Moreover, it was ruled inDarden v. Washington,
The plaintiff cites and relies on Smith v. Hodges,
The defendant filed a cross-bill of exceptions; but it is unnecessary to pass on the assignment of errors therein, as the judgment on the main bill of exceptions is affirmed.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. Stephens, P. J., and Felton, J., concur.
Addendum
I concur in the judgment, for the reason that in my opinion the verdict was demanded by the evidence.