54 Ga. App. 885 | Ga. Ct. App. | 1936
Lead Opinion
Francis M. Watson Jr.> by next friend, brought suit against Mrs. May Inman Gray, W. T. Robinson, doing business as Subway Parking Company, and the executors of the estate of D. Greenfield. Yerdict and judgment for the plaintiff were rendered. Mrs. Gray filed a motion for new trial, which was overruled; and on this judgment she assigns error. While this decision deals with the case as it pertains to Mrs. Gray, it is well to state that all of the defendants came to this court by separate bills of exceptions; and a decision in the Greenfield case has been rendered, to which reference is hereinafter made.
The facts as disclosed by the evidence are that the defendant Mrs. Gray owned a lot at the northwest corner of Forsyth and Hunter Streets in Atlanta; that at a previous time she had filled in this lot and made it level with the top of a rock wall on the north side of her lot; that she rented this lot to defendant Robinson who used it as a public parking lot; that immediately north of this rock wall on the edge of the parking lot was a pit or ditch approximately ten feet deep and two and one half feet wide, which was located (except for a few slight variations in the irregular rock wall) on the property of the Greenfield estate; that on the north side of the pit or ditch was a brick building belonging to the Greenfield estate, the pit or ditch being between the parking lot and the brick building; that the plaintiff, a minor, twelve years of age, went with his mother and a Miss King to this parking lot and, for a consideration, parked their car there; that they parked
The plaintiff in error contends that the child was negligent in walking around the car to get in on the other side, and in walking behind the car. In the absence of notice of danger, there is no negligence in walking around an automobile in order to get in on the other side. This is done practically every minute of the day throughout the civilized world. Neither is there any negligence in going behind the car rather than in front of it. On the contrary, it is ordinarily more prudent to walk behind a car than to walk in front of it; particularly so if some‘one is in the act of opening the door next to the driver’s seat, preparatory to getting in, ás in the instant case. It is a matter of common knowledge that numerous accidents result from walking in front of an automobile about to be started. The evidence shows that the boy had
In Greenfield v. Watson, 54 Ga. App. 9 (187 S. E. 183), the executors of the Greenfield estate being codefendants with Mrs. Gray and Mr. Robinson in the trial of this case, the decision of this court in favor of the Greenfields did not hold or intimate that the plaintiff was in any way negligent, or that Mrs. Gray was not negligent; but, on the contrary, it was strongly indicated that
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
Counsel for the plaintiff in error insist that a rehearing should be granted, (1) “Because the court overlooked the fact that this court had ordered a new trial as to one of the joint defendants in said case,” the estate of D. Greenfield; and (2) because the court overlooked a line of decisions holding that "“a verdict for damages against two or more defendants as tortfeasors should be set aside when it is, as against any one of the defendants thus held liable, unwarranted by the evidence.” In other words, counsel contend that since this court reversed the judgment in Greenfield v. Watson, 54 Ga. App. 9 (supra), it must necessarily reverse the judgment as to the other joint defendants, including Mrs. Gray, the movant in this motion for rehearing. We assume that through courtesy the counsel employed the usual term “overlooked” in reference to the case of Greenfield v. Watson, as that case was cited and discussed at length in the original opinion in this case. The effect of the ruling in the Greenfield case is that the Greenfield estate was not a joint tort-feasor, because the dangerous instrumentality (the pit or ditch into which the plaintiff fell) '“was created solely by the act of the owner of the adjoining parking lot in filling in with dirt and raising the level of the parking lot to even it with the top of the wall.” (Italics ours.) That decision further held as a matter of law, “under the undisputed testimony,” that the Greenfield estate was not liable for the plaintiff’s injury. The three defendants in the trial court filed separate motions for new trial, and came to this court by separate bills of exceptions. The evidence amply supported the verdict against Mrs. Gray. The verdict said that the plaintiff was damaged in a fixed sum, and that damage remains the same regardless of which one of the defendants is responsible for it. In
The oldest Supreme Court decision we have been able to find on this subject, and therefore the controlling one, is Irwin v. Riley, 68 Ga. 605. It was there held, that while the judge of the superior court “could not refuse a new trial on condition that the plaintiff should release and cancel the judgment as to one of the defendants, as to whom the evidence failed to support the verdict, the power of the Supreme Court [or of the Court of Appeals] is more ample as to moulding the case in the court below. This court may award such order and direction to the cause in the court below as may be consistent with the law and justice of the case. The verdict and judgment being right as to two of the defendants, and unsupported as to the third, it is therefore ordered that a new trial be granted, unless the plaintiff will dismiss his suit as to the last named defendant, and in that event that it be refused.” In the opinion it was said: “But in relieving Turner, one of the defendants, w'e do not think the justice or 1cm of the case demands that a new trial should be had, vacating the verdict against the other two defendants; that would operate unjustly to the rights of the plaintiff. The court below entertaining these views sought to mete out justice to all parties by refusing the new trial as to Irwin and Hammock on condition that plaintiff would release and discharge Turner from the judgment, and so ordered. We question the authority of the circuit judge to impose such terms. . . But the authority of this court, as conferred by statute, in the judgments here pronounced, is not so limited. In any cause tried here, it is within its power to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case.’ Code, § 4284” (1933, § 6-1610). Italics ours. In Harris v. Hull, 70 Ga. 831, 838, it was said: “One great purpose in establishing this court was to terminate suits, and with this view, it is made its duty not only to grant judgments of affirmance or reversal, but any other order, direction or decree
While headnotes 2 and 3 in Finley y. Southern Ry. Co., 5 Ga. App. 722 (64 S. E. 312), cited by movant, if construed alone and without regard to headnote 1 and to the entire opinion, might be misleading, the decision as a whole, which clarifies and shows the reasons for the rulings, furnishes good authority for the contention of the defendant in error in the case sub judice. In head
On the motion for rehearing in the Finley case, this court said: “The motion for rehearing invokes the exercise of this court’s
Gilstrap v. Leith, 24 Ga. App. 720 (102 S. E. 169), is cited in a quotation contained in the motion for rehearing in the instant case. In that case it was held that a verdict set aside as to one
Rehearing denied.