186 Ga. 620 | Ga. | 1938
Mary B. Kelly, a minor, acting by next friend, filed a suit against O. F. Davis and R. W. Locke to recover damages for personal injuries. The defendants filed an answer admitting some of the allegations of the plaintiff’s petition and denying others. The trial resulted in a verdict in favor of the defendants. The plaintiff’s motion for a new trial was overruled, and she excepted. The judgment refusing a new trial was affirmed by the Court of Appeals. Kelly v. Loche, 57 Ga. App. 78 (194 S. E. 595). On application of the plaintiff, the writ of certiorari was’ granted by this court. The plaintiff was injured while riding as a guest in an automobile with DeWitt Carter. The defendant Davis owned a truck to which was attached a trailer. The truck and trailer were being operated by R. W. Locke, an employee of Davis, on State highway No. 38 and in the vicinity of Blaekshear, Georgia. They were headed west, and were approaching Blaekshear when they were stopped by the driver for two or three minutes on the. highway, within less than eight feet from the center line. At this time DeWitt Carter was traveling-.in the same direction, and was approaching the truck and trailer from the rear. He discovered the trailer only after he had come over the brow of a hill, and being then, as the plaintiff contended, unable to stop his automobile in time, ran into the trailer, with the result that the plaintiff was injured. Contributing to his inability to pass the truck and trailer so as to avoid the collision was the fact that another automobile traveling in the opposite direction was approaching the truck at or about the same time.
The defendants in certiorari filed a motion to dismiss the writ, on the ground that it was improvidently granted, their contention being that no question of public concern is involved. It appears from the record that the highway in question is a State-aid road. Tinder the act of the General Assembly approved March 28, 1935 (Ga. L. 1935, p. 443), “It shall be unlawful for any person to stop or park any automobile, automobile truck, tractor, trailer, or other motor vehicle, or horse-clrawn vehicle, on or along any State-aid road or highway, unless such vehicle be placed so that it is at least eight feet removed from the center line of such
In reference to the act of 1935, the judge of the trial court instructed the jury as follows: “Now, under ordinary circumstances, as a general proposition of law, no truck or automobile . . can be stopped in less than eight feet from the center line of the road. But the law does not require an impossibility; and if this road was of such width that it was a physical impossibility to park the truck eight feet from the center-of the road, then this statute would not be applicable under such circumstances, because the law does not require an impossibility. To make this perfectly, plain, suppose the entire road was only twelve feet wide, it would be impossible to park any ear on the road eight feet from the center, because if the open road was only twelve feet, you could not park a ear eight feet from the center. That is the contention of the defendants. They say it was impossible to park that truck under the circumstances of this case eight feet from the center line of the road; and if that is true, the ordinance [statute] in question would not have any applicability to this case.” , In the plaintiff’s motion for a new trial, this charge was assigned as error on the following grounds: (1) That it excluded “from the consideration of the jury the contention of the plaintiff that the driver violated the statute . . by failing to move his truck as far as practicable on to the shoulder of the road, and thus failed to exercise ordinary care;” (2) that the instruction “was erroneous for the reason that it excused the driver from compliance with the statute . . if the actual highway, without the shoulder, was not of such width that it was possible to park thereon eight feet from its center;” (3) that “it was calculated to lead the jury
In the petition for certiorari it is averred that the Court of Appeals committed error as follows: "In holding that it was not error for the trial court to charge the jury that if the road at the place where the collision occurred was of such width that it was a
It is true that the act of 1935 must be given a reasonable construction, and that under such a construction it will not require an impossibility. But it does not cease to be applicable merely because the operator of a motor vehicle may, without fault on his part and in some emergency, find it necessary to stop the vehicle on the highway, even though from the narrowness of the road he is unable to park the vehicle so that “no portion thereof shall be within eight feet of the center line of such State-aid road or highway.” In such case the statute is still applicable, and would require that the vehicle be parked as far from the center line as possible, consistently with ordinary care and diligence in view of the circumstances, having due regard for the safety of person and property, including the driver and his vehicle, as well as other persons and vehicles. The court did instruct the jury that if the driver of the truck “'did not exercise ordinary care and diligence and could have gotten off the road, he should have done so, and a failure to exercise that care would be negligence per se;” but this charge does not seem to have had reference to the contention of the plaintiff that there was ample parking space at or near a filling-station about 175 feet ahead, to which the driver could have resorted in the exercise of proper diligence. It is true that this qontention of the plaintiff was mentioned in the charge. It was immediately followed, however, with the statement, “But you must determine from all the facts and circumstances whether a parking space could be had there if he parked within eight feet of the center of the road, or, by the exercise of ordinary care, he could have parked it more than eight feet.” This statement and others made in connection therewith were calculated to leave the impression that the driver had no duty of seeking parking space anywhere except at the point where the alleged emergency arose, and the charge as a whole might reasonably have been construed as eliminating the plaintiff’s contention that the driver could in ordinary diligence have discovered and resorted to ample parking space only a short distance ahead. As we have stated, if there was not sufficient parking space at the point of the emergency, the statute would still be applicable and would require that the vehicle be parked as far from the center line as reasonably possible, in the exercise of ordinary care and diligence in view of the eircum
Nothing said in this opinion should be understood as implying that where an owner or a driver of an automobile is guilty of negligence in reference to the condition of the vehicle, and as a result of such negligence it becomes necessary to stop or park upon
In special ground 3, numbered ground 6, of her motion for a new trial, -the plaintiff assigned error upon the following charge of the court: “The defendants’ contention is that the cause of the accident was not the negligence of the driver of the truck, but the real, direct, and proximate cause of the accident was that the driver of the car in which the plaintiff was riding was negligent in coming over the brow of the hill without knowing what was in front of him, at a speed, as they contend, of 60 or 70 miles an hour, and that this was the proximate cause of the accident. If it was, then the driver of the car the plaintiff was in would be the party . . responsible for the accident.” It was contended by the plaintiff that even though negligence of the driver of the automobile in which she was riding may have been one of the proximate causes of her injuries, the negligence of Locke as the driver of the truck could also have been a proximate cause, and that in charging that if the negligence of the driver of the automobile was the proximate cause of the plaintiff’s injuries the driver of this vehicle would be the party responsible, “the court ignored the rule that two or more acts of negligence may contribute directly and concurrently to bring about an injury, and that they together may constitute the proximate cause.” A second contention was that the charge was not sound as an abstract principle of law. It was held by the Court of Appeals that the charge here in question was not erroneous for either reason assigned, and this ruling is assigned as error in the petition for certiorari. In view of the context, it is apparent that the phrase “the proximate cause” as contained in this excerpt was intended
But in special ground 4, numbered ground 7, the plaintiff assigned error upon the following charge: “ You have got to decide whose negligence caused the accident. Was the negligence of the driver of the car in which the plaintiff was riding the direct and immediate cause of the accident? Or was the parking of the truck on the side of the road the immediate and direct cause of the accident?” The assignment of error was as follows: “The charge . . required the jury to find that either the negligence of the driver of the ear, or the negligence of the driver of the truck, one or the other, was the cause of the injury, and prevented the jury from finding, as they might have done under the evidence, that the negligence of both drivers contributed concurrently and directly to bringing about the injury and together constituted the proximate cause.” In the petition for certiorari error was assigned on the ruling of the Court of Appeals to the effect that the quoted charge was not erroneous, the assignment of error being similar to that contained in the motion for a new trial. The language of this charge was susceptible of the construction that the jury were obliged to decide as between two alternatives, namely, whether the negligence of the driver of the automobile was the proximate cause, or whether the proximate cause was the parking of the truck on the side of the road by the defendant Locke j and it is our opinion that the assignment of error thereon in the motion for a new trial was well taken. Under the evidence, the jury could have found that concurrent negligence of the two drivers mentioned constituted the proximate cause of the plaintiff’s injuries, and in this view could have found for the plaintiff, despite the negligence of the driver of the automobile in which she was riding. This is true notwithstanding the fact that the petition may have alleged in effect that there was no negligence or fault on the part of the driver of such automobile. See Smeltzer v. Atlanta Coach Co., 49 Ga. App. 755 (2) (176 S. E. 840); Shermer v. Crowe, 53 Ga. App. 418 (3) (186 S. E. 224:). Where a plaintiff alleges more than is necessary to entitle him to recover, but yet proves a sufficiency of the averments to show the defendant liable, his ease does not fail merely because he does not prove every
In the seventh special ground, numbered ground 10, of the motion for new trial, the plaintiff assigned error on the following charge: '"The defendants’ contention is that the driver of the ear in which the plaintiff was riding was well known to the plaintiff. They contend that Carter, the driver of the car, was a notoriously careless’and incompetent driver and drove at dangerous and negligent rates of speed, and that when the plaintiff went to ride with him she knew of his character as a driver, and that, knowing that, she assumed the risk of his driving. On the other hand, the plaintiff contends Carter was not a careless driver, that he was in the exercise of all ordinary care and diligence; that whether he was a negligent driver or not, there is no evidence showing the plaintiff knew he was a negligent driver, and that she was not bound by any negligence on his part unless he was a notoriously careless driver and she knew that he was a careless and negligent driver.” As to this ground the only assignment of error contained in the petition for certiorari was "that said ruling of the Court of Appeals that said charge 'was not erroneous is contrary1 to law, because neither the pleadings nor the evidence authorize such a charge, and it could not but be seriously harmful to the plaintiff, because it injected into the ease an issue not made by the pleadings nor the evidence, and it was calculated to confuse and mislead the jury, and to cause them to believe that the burden was on the plaintiff to show that DeWitt Carter, the driver of the automobile in which she was riding, was not a careless and negligent driver.” The charge was not erroneous, as contended, on the ground that it was not authorized by the pleadings. ‘ Under the defendants’ general denial' that their own negligence was the proximate cause of the injuries, it was permissible to show that the plaintiff’s injuries were caused by anything else. Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818); Savannah Electric Co. v. Jackson, 132 Ga. 559 (4) (64 S. E. 680). The only evidence which might be considered as authoriz
It can not be said that this evidence was insufficient to authorize the charge here under consideration. In the circumstances, the jury were not compelled to believe the testimony of the plaintiff in its entirety, but could have found from her testimony and that of C. L. Harris, considered together, that Carter, to her knowledge, was accustomed to drive at excessive and dangerous rates of speed, and was therefore in that respect an incompetent driver. Sappington v. Bell, 115 Ga. 856 (42 S. E. 233). If such was his character as a driver and the plaintiff had knowledge of it from her frequent rides with him over a period of years, it would be immaterial whether he was notoriously careless or not. Moreover, if on this occasion he was driving at a speed of 60 to 70 miles per hour “or better,” and if in so doing “he was driving like he had
In special grounds 5 and 6, numbered in the motion for a new trial as grounds 8' and 9, the .plaintiff assigned error upon two excerpts from the charge of the court, upon the asserted ground that they contained erroneous statements of the plaintiff’s contentions. It was held by the Court of Appeals that these instructions were incorrect, but not cause for a reversal. Since a new trial will ultimately be granted because of other errors pointed out in this opinion, and since it is unlikely that the charges here in question will be given upon another trial, we need not consider whether the Court of Appeals should have held that these charges contained reversible error.
In one of the grounds of the motion for new trial, numbered by the movant as ground 15 but referred to by the Court of Appeals as special ground 10, the plaintiff assigned error upon the refusal of the judge to charge, on written request, as follows: “In connection with the contentions of plaintiff and defendants that I have just mentioned, I charge you that if you find that it was necessary for said defendant Locke to park said truck and trailer at the place where they were parked on account of a tire on the rear wheel of the trailer suddenly becoming deflated and going flat, and you further find that on account of the narrowness of the clay shoulder at said point on said highway it was impossible for said defendant to comply with the law requiring that no portion of said truck and trailer should be within eight feet of the center of the highway, and defendant Locke complied with this law as nearly as it was practicable for him to do, then defendant would not be guilty of negligence by reason of the parking of said truck and trailer as they were parked. On the other hand, I charge you