| Ga. | Mar 19, 1903
Henderson, by next friend, brought an action against the Georgia Brewing Association to recover damages for personal injuries. He alleged in his declaration that he was riding a bicycle on Drayton street, in the city, of Savannah, going south and riding on the right side of the street; that a beer wagon of the defendant was on the same side of the same street, going north, and that by the gross negligence of the driver of the wagon plaintiff was injured and damaged by coming in contact with one of the horses attached to the wagon. To this declaration a special demurrer was filed. To meet the demurrer, the plaintiff amended by alleging that the servants of the defendant were grossly negligent in that the driver of the wagon “ was negligently driving on the left-hand side of Drayton street going north, and further was driving at a fast and reckless rate of speed.” On the trial of the case the evidence was conflicting as to which side of
One of the grounds of the motion for new trial complained of the following charge of the court as not being adjusted to the pleadings: “As to the question of the right of way,— I mean keeping to the right,— I charge you that is the rule where two parties are meeting each other upon the highway, but it is qualified when one or the other is turning to the right or the left into another road, or a street, or a lane. In that case it may be necessary to turn to the left, and, if so, the party turning to the left is not exonerated from still exercising all due care and diligence to see that he does not injure any one else. But the strict principle of keeping to the right of the road does not hold in the case where a party’s business requires him to turn either to the right or left.” The complaint was based upon that part of the charge which stated that, even if the party had to turn to the left, still he would not be exonerated from exercising all due care and diligence to see that he does not injure any one. Counsel claimed that this charge allowed the jury to find against the defendant association on a theory not set out in the plaintiff’s declaration ; that the declaration alleged negligence in but two particulars, the driving at a reckless rate of speed and the driving on the wrong side of the street; that there was no evidence of a reckless rate of speed, and the evidence was conflicting as to the driving upon the wrong side of the street; and that this charge left the jury free to decide against the defendant, although it was not negligent in either of the particulars alleged in the declaration, or although the driving upon the wrong
Counsel for the defendant in error argued that, although this charge may not have been adapted to the pleadings in the case, evidence had been admitted, without objection, as to the want of care of the driver, and, therefore, the court had a right to instruct' the jury as to the effect of it. We think that no evidence was admitted upon this subject which would not have been admissible under the pleadings. The real contest seems to have been as to-how the accident occurred,— whether the plaintiff recklessly ran into the wagon, and whether he could have avoided the injury by the exercise of due care. There was no evidence as to the conduct of the driver which was not admissible upon these issues. Moreover, this court has not held in any case we now remember, or which has been cited, that the plaintiff can recover for acts of negligence not set out in the declaration, where the allegations therein are plain and unambiguous. All the cases cited by counsel for the defendant in error were decided upon declarations which were ambiguous, and evidence allowed to go in, without objection, upon a declaration susceptible of more than one construction. The charge complained of in the present case was error.
There were other charges excepted to of which we do not approve, but they will not probably be repeated upon another trial of
Judgment reversed.