57 Ga. App. 78 | Ga. Ct. App. | 1937
Lead Opinion
By her next friend Mrs. W. S. Ammons, Mary B. Kelly, a minor, sued O. F. Davis and Baybun W. Locke, to recover damages for personal injuries resulting from a collision between the automobile in which the plaintiff was riding and the rear end of a trailer. A jury found for the defendants, and the plaintiff excepted to the judgment overruling her motion for new trial. Briefly stated, the case made by the petition is substantially as follows: The collision occurred about half-past seven o’clock on the night of February 7, 1936, on State Highway 38, and within the corporate limits of the City of Blackshear, at a place where the paved portion of the road was eighteen feet wide, and the north shoulder of it was “ about four to five feet in width,” and firm. The truck and trailer were each seven feet wide. “There was a light rain falling, and the highway was wet and somewhat slippery.” Locke had parked the truck and trailer so that they were on the north side of the highway, headed in a westerly direction, with all their wheels, on the pavement, except that “the tires'on the double wheels next to the outer edge of the pavement were on”
Some of the pertinent averments of the defendants5 answer are substantially as follows, by paragraph numbers: (4) “Defendants admit that . . Locke stopped said truck and trailer, but show that same were stopped by reason of an emergency by reason of the fact that one of the tires on the trailer suddenly went flat, making it dangerous and unsafe . . to proceed . . further.55 Admit that said vehicles were stopped less than eight feet removed from the center line of said highway, but show that the highway was eighteen feet wide, the shoulder four feet wide, and the vehicles seven feet wide, making it impossible to comply with said act of 1935. However, said vehicles “were stopped just as far removed from the center line of said highway as was physically possible.55 (7) Carter “was driving at a rate of speed of from fifty to sixty miles per hour as he approached . . said truck and trailer,55 and not forty miles an hour, as alleged. (9) “It was a physical impossibility to stop said truck and trailer eight feet removed from the center line of the highway, . . and . . said truck and trailer were so stopped by reason of an emergency.55
There was testimony to the effect that the trailer and truck (which were loaded with ten tons of sugar) could have been stopped nearer the edge of the shoulder of the road, and there was evidence to the effect that said shoulder was soft, and that said vehicles were stopped as near the outer edge of the shoulder, which was bordered by an eighteen-inch ditch, as they could be safely driven. There was testimony from which the jury could have concluded that the truck and trailer had rear lights on them, and testimony to the effect that they did not. There was no dispute that there was a place about 175 feet ahead of the truck and trailer, near a well-lighted store and filling-station, where those vehicles could have been parked entirely off the highway. The defendant Locke admitted that, but he testified in substance that it was necessary to examine the tires of the vehicles because of a sudden blowout on one of the tires of the trailer, and that he left his motor running while he made an examination, and that just as he got back in his truck, and before starting it, the automobile in which the plaintiff was riding struck the rear of the trailer. He further testified, in effect, that his truck and trailer had not been stopped over three minutes before the collision occurred. Witnesses estimated that the speed of the automobile in which the plaintiff was riding was, just before the collision, from forty miles an hour to a greater speed. The act of 1935 (Ga. L. 1935, p. 443), declares that “it shall be unlawful for any person to stop or park my automobile, automobile truck, tractor, trailer, or other
The ground of the motion for new trial complaining of the admission of certain evidence, is not insisted on, and is without merit. Another ground assigns error upon the following excerpt from the charge of the court to the jury: “Now under ordinary
Error is assigned upon the following excerpt from the court’s charge: '“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 sixty or seventy 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.” The gist of the first assignment of error is that “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;” it being urged that, “ although there was some evidence that the driver of the car in which plaintiff was riding was negligent, in view of the
Error is alleged because the court charged as follows: “You have gbt 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?” Error is assigned because the charge “required the jury to find that either the negligence of the driver of the car, 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.” This assignment is very like the one in the previous ground, and, for reasons therein indicated, we hold that it is not erroneous.
Error is assigned because the court charged that the defendants contended that “there were lights on the rea,r and front of the truck and trailer, and that they complied with the law, and the contention of the plaintiff is that they did not comply,” whereas “the plaintiff contended, and alleged in her petition, that there were no rear lights burning on the truck or trailer.” The excerpt “was not calculated to confuse and mislead the jury into believing that if the defendants had lights burning on the
Error is assigned because the court instructed the jury, in effect, that there must be a causal connection between negligence and injury; and that if the alleged failure to have lights on the front of the truck and trailer had no connection with the collision, such failure, if it existed, would not be considered. While we do not think the charge should have been given, -we are satisfied that it is no cause for a reversal of the judgment.
Error is assigned upon the following charge: “The defendants’ contention is that the driver of the car 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 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.” There was evidence that the plaintiff had ridden with Carter on previous occasions; the petition alleges that the pavement was wet and slippery, that the collision occurred in the limits in Blackshear (where the speed limit was fifteen miles per hour), and that Carter was driving at about'forty miles an hour very shortly before the collision, at a time when the bright lights from an approaching automobile were shining in his face; and there was evidence that Carter was traveling much faster than forty miles an hour. Among other things, Mary B. Kelly swore: “I did not notice any difference in his driving that night and at other times.” With this statement, we decline to hold that the charge was erroneous upon the ground that “there was no
Error is alleged because the court instructed the jury: “But if the plaintiff did not fail to observe ordinary care and diligence in regard to the driver, she would not be negligent, and the negligence of the driver would not be imputable to her; in other words, see if she was in the exercise of ordinary care and diligence in going to ride with . . Carter under the evidence.” As in the previous ground, the gist of the assignment of error here is that the charge was not supported by either the pleadings or the evidence. The ground discloses no valid reason for reversing the judgment.
We deem it only necessary to say that there is no merit in the assignment that the charge of the court that the burden was upon the plaintiff “to prove by a preponderance of the evidence, first, that the defendants were negligent in at least some of the particulars set put in the petition; and second, that such negligence was the proximate cause of the injury complained of,” was erroneous because the use of the italicised words “placed a greater burden of proof on the plaintiff than that imposed by law.”
In view of the instructions quoted from the court’s charge in special ground % of the motion for new trial, we hold that the court did not commit reversible error in failing to give the requested instructions set out in special ground 10. Having properly charged the law concerning the plaintiff’s status as a .guest of the driver of the automobile in which she was riding, the failure to give the requested charge upon that subject was not error.
The verdict for the defendants was supported by the evidence.
Judgment affirmed.
Rehearing
ON MOTION EOR. REHEARING.
The plaintiff in her motion for rehearing, among other things, in effect contends that it is obviously unfair for this court to hold that it was not reversible error for the judge to fail to charge on an issue raised by the plaintiff’s evidence but not distinctly raised by her pleading, where there was no request so to do, and at the same time to hold that it was not reversible error where the court charged on a pertinent issue
Of course, where a petition alleges that the injuries were due solely to the negligence of the defendant, if the evidence shows only concurrent negligence on the part of the defendant which was the direct, immediate, and proximate cause of the injury, a verdict for the plaintiff would be sustained even though the injury was not due solely to the negligence of the defendant, and this is true whether the judge charged specifically on concurrent negligence or not. On the other hand, a charge of the court based upon pertinent evidence admitted without objection was not cause for a new trial, “although in looking strictly to the
We think the opinion in this case is fair and right and in accordance with the decisions of this court' and the Supreme Court of this State. None of the other contentions made by the plaintiffs in the motion for rehearing are meritorious.
Rehearing denied.