50 Ga. App. 811 | Ga. Ct. App. | 1935
Lead Opinion
F. Y. Taylor, as next friend for his minor son, Ficken Taylor, and for himself individually, brought separate suits against William R. Houston, alleging, in. substance, that Ficken
The acts of negligence as specifically set forth in the amendment to the petition are as follows: “(a) By defendant suddenly stopping his automobile without any notice, signal or warning to the drivers of automobiles being driven directly behind defendant’s automobile, and in violation of paragraph (e), section 8, article III of the Traffic Code of the City of Augusta for 1932, which reads as follows: ‘Before a vehicle retards its speed or comes to a stop his (or her) arm shall be extended 45 degrees downward from the left side of the vehicle for a sufficient time to apprise pedestrians, approaching or following vehicles, of the intended stop.’ (b) By defendant suddenly stopping his automobile in the middle of the street and where the hill was at its greatest slant, which made it difficult, and almost impossible, for the automobiles, being driven directly back of the defendant’s automobile, to be quickly stopped, and in violation of section 53, article vu of the Traffic Code of the City of Augusta, 1932, which reads as follows: ‘Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving.’ (c) By defendant stopping his car in a roadway other than par
The damages sought by the boy were for physical pain and mental anguish, and his father sought to recover for expense incurred as a result of the injury. The two cases were tried together, and a verdict and judgment were rendered for the plaintiff in each suit. In each case the defendant assigns error on exceptions pendente lite to the overruling of his demurrer to the petition; on exceptions pendente lite to the refusal to grant a mistrial because of alleged prejudicial remarks of counsel for plaintiffs in his argument to the jury; and on the overruling of the defendant’s motion for a new trial.
In each case the petition as amended set out a cause of action, and was not subject to any ground of the demurrer interposed, and the court properly so held. '
Exceptions pendente lite, and also the only special ground of the motions for a new trial, complain of the following alleged prejudicial remarks of counsel for plaintiffs: In commenting be-' fore the jury on the distance and speed of Hammond’s car, “James S. Bussey, of counsel for defendant, said that Dr. Houston had taught him arithmetic at the Biehmond Academy, and that if Keene Hammond’s car was going at a rate of speed of 20 miles per hour, it was making 105,600 feet per hour, which divided by 3600 would make the car proceed at approximately 30 feet in one second; and therefore to cover the distance between his car and de
As shown by the foregoing statement of facts and our ruling on the demurrers, the petitions charged gross negligence on the part of the defendant Houston; and the record discloses ample evidence to authorize the jury to find that the charge had been sustained. There was evidence to show that the place where the defendant stopped was a street where traffic was unusually heavy, and particularly so when school had just turned out, as in the instant case; that the defendant stopped suddenly, on a down-hill slant, in the middle of the street, without holding out his hand or
There is no merit in the contention of the plaintiff in error that the injury was caused by the intervening negligence of Keene Hammond in trying to pass the defendant’s car on the right side, there being evidence to authorize the jury to find that Hammond exercised good judgment under the existing circumstances. Defendant had created the emergency by stopping suddenly, and, without warning to those behind him, on a down-hill slant, in the middle of a street where traffic was usually heavy and particularly so at the hour when school had just turned out. Hammond testified that he was within about ten feet of the defendant’s car and
The jury were authorized to find from the evidence that the minor plaintiff, by the exercise of ordinary care, could not have avoided the injury to himself. It is true that if the boy had stayed on the sidewalk he would not have been injured, but the question is not whether it were possible for' him to have avoided the injury, but whether he could have avoided it by the exercise of ordinary care; and whether his negligence (if he were negligent) was equal to, or less, or greater than, the negligence of the defendant. The defendant had stopped suddenly and invited the
The questions as to the proximate cause of the injury; whether the defendant was guilty of gross negligence; whether Hammond’s act was such an efficient intervening cause as to excuse the defendant’s negligence; whether Eieken Taylor, by the exercise of ordinary care, could have avoided being injured; and whether his negligence (if he were negligent) was equal to, or less, or greater than, the defendant’s negligence, were, under the pleadings and the evidence, questions for the determination of the jury; and the court in its charge so clearly, fairly, and fully instructed the jury upon all these issues that no assignment of error was made upon the charge. The verdicts were authorized by the evidence, and the refusal to grant new trials was not error.
Judgment affirmed.
Dissenting Opinion
dissenting. The allegations of the petition are fully set forth in the majority opinion. The evidence was that the plaintiff, a schoolboy, was waiting with a companion, at the intersection of Walton Way and Hickman Road in the City of Augusta, in front of the Walton Apartments, to catch a street-car. On direct examination the plaintiff testified: “Dr. Houston’s car came by and he called for us to get in and we went to get in and Dooley
The plaintiff made the following signed statement about two days after the accident: “My • name is Ficken Taylor, age 16 years. On Monday, January 23, 1932, I got out of school about twelve and walked west on Walton Way, trying to catch a ride down town. Julian Dooley, who lives on the northwest corner of Fifth and Walker Streets was with me. He was also trying to catch a ride. . . We got as far as Walton Way Apartments, now known as the Inn. We saw Dr. Houston’s car parked in front of the Walton Way Apartments, and he started, down town, and we signalled- him for a ride, and he slowed down and stopped slightly on the right center of the street, not leaving enough room for a car to get by on his right. He had not gone any distance from where he was parked until stopped, not over fifty feet, if that far. Dr. Houston came to a complete stop and Julian got in his car. I was in the act of getting in, had my right foot on the running board just preparatory to getting in, when I was struck by a car going east on Walton Way. This car hit me and broke my left leg between the knee and hip. In my judgment it was not Dr. Houston’s fault. It was the fault of Keene Hammond, who was driving the other car. I don’t know how fast he was going. I saw him coming, but thought he would stop before hitting me. Lib Murray, Elizabeth Murray, and I think someone, was in the back seat of his Ford Sedan. I don’t know how far Dr. Houston’s car was from the right-hand curb, but it didn’t seem to me there was enough room for the Hammond car to pass. As soon as he hit my leg I hollered, and he stopped, he did not go through. Dr. Houston immediately brought me to the hospital.”
The cardinal rule of construing pleadings is that they shall be construed most strongly against the pleader. The negligence alleged against the defendant is gross negligence, which is the absence of slight care and is, under the Georgia decisions, that negligence which allows a recovery by a gratuitous passenger against
However, in my opinion the evidence shows conclusively that the plaintiff could have avoided the results of the negligence of the defendant by the exercise of ordinary care. He was standing in a place of safety, and without looking to see what cars were coming, but, in absolute disregard for his safety, he ran into the street. He knew that the defendant had stopped his car and was chargeable with notice of any alleged emergency which had been created by the act of the defendant. The theory of the plaintiff, to support a recovery in this case, is that he was a gratuitous guest of the defendant, and in such circumstances the defendant owed to him only slight care. The court charged the jury :■ "I charge you as a matter of law that one does not become a passenger until he is in the automobile, and if you believe that at the time of the injury to Ficken Taylor he was not in Dr. Houston’s automobile, then he would not be Dr. Houston’s guest and Dr. Houston would not owe him the slight degree of care of a host and would not be liable in this suit.” The alleged acts of negligence on the defendant’s part had all occurred prior to the time of the injury, and before the defendant owed any duty at all to the plaintiff, until the relationship of passenger, guest, and passenger host had become established the defendant was under no legal duty to the plaintiff. The alleged negligent act of stopping had occurred before or at the same time of the invitation. The defendant had already stopped before the plaintiff left the curb or signified his intention, according to his own testimony, of acceptance of the invitation. The entire negligence alleged in the petition is embraced within the act of the defendant stopping his
Rehearing
ON MOTION FOR REHEARING.
withdraws his specially concurring opinion, and concurs in the judgment of affirmance, but not in all that is said in the opinion. Rehearing denied.