17 S.E.2d 891 | Ga. Ct. App. | 1941
Lead Opinion
1. It is the duty of the motorman on a street-car driving on a track in the middle of the street to observe parked automobiles, and to know that an approaching automobile can not pass a parked automobile without coming on the street-car track.
2. Until such time as the risk of a collision becomes imminent and thereby destroys the basis of the assumption, a motorman is justified in assuming that an automobile approaching behind a parked automobile will wait until the street car has passed before coming onto the track to avoid the parked automobile.
3. The judge did not err in directing the verdict for the defendant. The proved facts, viewed from every possible legal point of view, could sustain no finding other than that directed. Davis v. Kirkland,
4. The restrictive rules of evidence are intended to prevent verdicts from being based on surmise; not to exclude preliminary facts which, with other preliminary facts, tend to establish an ultimate relevant fact. The evidence referred to in ground 2 of the motion for new trial went beyond the correct scope of counsel's question and stated a conclusion which was in the nature of surmise only, and was properly excluded.
The plaintiff, a child of two years, was riding as a guest in an automobile driven by E. F. Sinyard, who had but one arm, in a southerly direction on Howell Mill Road in the City of Atlanta. At the place where Sinyard's automobile collided with the defendant's street-car the street-car track is located in the center of the road, which is approximately forty feet wide, and there were other automobiles parked along the right curb relatively to the direction in which Sinyard's automobile was travelling. According to the testimony of Sinyard, he had passed three or four other automobiles which were parked on the right side of the road, and in so *364 doing he was required to go upon the street-car track. After passing these parked automobiles, he turned off of the track to his right, and as he approached another parked automobile he again turned upon the track to pass it. As to what then occurred we quote from Sinyard's testimony: "I came around the automobile parked on my right side before this collision took place; I imagine it was about ten feet. I pulled out on the car line about ten or fifteen feet before I got to the automobile, and then I will say it was about that distance when the collision happened. My automobile was situated sideways when it came in contact with the street-car, hit the left side [of the automobile]. . . I seen the street-car before it hit me; I seen the street-car coming across the bridge at White Provision Company, I will say around 200 feet before we met each other. This street-car was going in the opposite direction; the street-car was going north and I was coming to town. Mrs. English was injured, and her baby. I did not lose consciousness during any portion of the accident. I remember everything that was going on all the time." On cross-examination Sinyard testified that before this trial he had made a deposition in which he stated that he did not see the street-car until after the collision, and that he fainted, had a heart attack, and did not know what happened, but that now he says that he did not pass out and never lost consciousness and that the reason he testified to the contrary in the deposition was that he was told to "tell it, like that, to keep down trouble in the family, hard feelings with my uncle and aunt. I was told, my uncle and aunt told me, to tell it like that; that it would cause him to lose his job with the Georgia Power Company; and since making my depositions I have filed suit against said company." With reference to whether the motorman applied his brakes, Sinyard testified: "I never did hear the motorman on the street car apply the brakes after he hit the automobile or beforehand at all. I would say the street-car ran after the impact, after the collision, around ten feet." Mrs. English, the plaintiff's mother, testified that she was playing with the baby (the plaintiff) on the back seat of the automobile. She also stated: "I did not get an opportunity to see the operator of the street car; all I saw was the street car. I did not hear any kind of noise of an approaching street car. I did not hear any noise as to brakes being applied. It seemed like the automobile stopped on the street-car *365 track. I could not tell you if it had stopped before the impact or stopped afterwards. When I seen the street car I fainted. . . After the impact I was unconscious. . . Being in the position I was, directly in front of it, and not having any background against which it would be moving to the side, but coming straight forward toward me, I did not actually know whether it [the street car] was moving at that time."
The plaintiff was a guest in the automobile which collided with the street-car. Hence, the contributory negligence, if any, of the driver of the automobile can not be imputed to the infant guest, and the conduct of the driver of the automobile is material only to the extent that it bears on the question whether, under all the circumstances, the motorman was negligent. Code, § 105-205; Roach v. Western Atlantic R. Co.,
The plaintiff alleged that the motorman was negligent in the following respects and that this negligence was the proximate cause of the injuries: (a) In operating the street car at the time and place in question at the fast and dangerous rate of speed of thirty-five miles per hour. (b) In failing to keep a lookout in the direction the street car was going. (c) In failing to warn the plaintiff and the driver of the automobile in which the plaintiff was riding that the street-car was approaching. (d) In failing to apply the brakes on the street car and check the speed thereof as it approached the plaintiff and the automobile in which he was riding. (e) In failing to apply the brakes on the street car efficiently and sufficiently and stop the street car before striking the automobile in which plaintiff was riding. (f) In operating the street car into and against the automobile in which the plaintiff was riding and injuring him. The acts of negligence stated in paragraphs (a) and (b) were expressly abandoned by the plaintiff in his brief.
"It is generally true that if a collision takes place on the wrong side of the road with respect to one of the parties, the presumption is against that party. McGee v. Young,
Under the testimony of the witnesses for the plaintiff, the motorman had a right to assume that the driver of the automobile would not turn out from behind the parked automobile onto the track, and until it appeared that the driver of the automobile could not or would not exercise his power to protect himself and the guests in his automobile by waiting behind the parked automobile until the street car had passed before coming out from behind said parked automobile onto the track, which would of course have avoided the collision, the motorman was free from negligence. Virginia Ry. c. Co. v. Leland,
Where a witness testifies that a certain act took place it is presumed that she knew it from her knowledge, and in the absence of anything to the contrary the testimony is admissible, but if it appears from her own testimony that she is merely surmising that it took place it should be excluded, but a preliminary fact within her knowledge, which with other facts tends to establish an ultimate relevant fact that the act took place, should not be excluded. Rivers v. State,
Judgment affirmed. Sutton and Gardner, JJ., concur. Broyles,C. J., disqualified.
Addendum
If the testimony of the motorman, a witness for the defendant, which the plaintiff quoted in his motion for rehearing *369 was the truth of the occurrence, applying it to the principle that "until such time as the risk of collision becomes imminent, and thereby destroys the basis of the assumption, a motorman has the right to anticipate that an automobile approaching from the opposite direction on the car track will turn off the track in such time as to avoid harm, and may govern his conduct by such justifiable expectation" (3 Blashfield's Cyc. of Auto. Law and Practice, 313, § 1930), there could still be no recovery. While the testimony of the witnesses for the plaintiff and the defendant was conflicting, yet under neither could the plaintiff recover.
Rehearing denied. Sutton and Gardner, JJ., concur.