42 Ga. App. 1 | Ga. Ct. App. | 1930
Mr. and Mrs. E. T. Mathis (otherwise referred to as Eyan T. and Mrs. Lois Mathis) brought separate suits for personal injuries against T. H. Mathis; and upon identical allegations and evidence the two cases were tried together, and resulted in verdicts for the plaintiffs for $2,500 and $5,000 respectively. The court overruled the defendant’s separate motions' for a new trial, and he excepted. Accordingly, we will decide the cases together, but will refer to the various parts of the record either in the singular or in the plural as convenience or facility may suggest.
E. T. Mathis and T. H. Mathis were brothers, and lived in Americus, Georgia. On December 3, 1927, both were desirous of attending a game of football in Atlanta, and were going in separate cars. For reasons beneficial to T. EL, the brothers exchanged cars for the occasion, so that the plaintiffs, Mr. and Mrs. E. T. Mathis, were to go in the car of the defendant, T. EE. Mathis, which was a Chrysler roadster. They accordingly started in this vehicle, but at a certain point en route the left front wheel from some cause locked and ceased to turn, with the result that the car swerved and ran off' an embankment, and both the plaintiffs were injured. There is ho question that the verdicts were entirely reasonable from the standpoint of the damage sustained, and the cases are such' as to excite the profoundest sympathy for the plaintiffs; but we are constrained to the view that the plaintiffs failed to prove the negligence alleged, and, therefore, that the court should have granted new trials upon the general grounds of the motions.
The petition in each ease alleged “that the brakes on said Chrysler car belonging to the said T. EE. Mathis was in a seriously defective condition, so much so that they were not dependable and were liable to clamp the brake-bands on the wheel at any time, and the said T. EE. Mathis knew of the defective condition of the brakes on said automobile, and did not advise this petitioner of same;” and that the defendant “was personally negligent in connection with said matter in the following• respects, to wit: (a) That said T. EE. Mathis knew that the brakes on his said automobile were in bad condition and could not be depended upon to operate as they should; (b) That said brakes were what is known as hydraulic brakes, and when.in a defective condition are liable to clamp and lock the wheels' without any effort on the part of the driver to apply the brakes, which was known to T. EE. Mathis; (c)
The evidence showed without dispute that for some reason the wheel became locked, as averred in the petition, and may have presented an issue (but this is not decided) as to whether the occurrence was the result of a defective brake. The evidence also indicated that the defendant knew that the brakes were defective in a certain particular, and that he failed to inform the plaintiffs, or either of them, of this fact; but there was no proof whatever that he knew of any such defect as that described in the petition, and the evidence was conclusive that the defect of which he had knowledge would not have caused a clamping or locking of the wheel, but would have produced an absolutely opposite result. The defendant had intended to use his own car for the Atlanta trip, which, with a rumble-seat, would have accommodated his party of four if the weather had continued good; but on the morning in question the weather became inclement, so that those who might have ridden in the rumble-seat would have suffered discomfort; and it was for this reason that the defendant desired to exchange his car for the Eord sedan which the plaintiffs had expected to use. In order to have his car in proper condition for the trip, the defendant had placed it in a garage for repairs to the brakes, and also to have a leaf put in one of the springs; and after the agreement to exchange, the plaintiff, E. T. Mathis, got the car from this garage. The car was equipped with hydraulic brakes, and the defendant had owned it for at least four months, during which time he had driven it constantly.
The defendant was introduced as a witness for the plaintiff, and testified: “I had experienced trouble with the brakes. The'
The plaintiff, E. T. Mathis, testified that the wheel locked and drew the car off the embankment, when he was traveling at a speed of about 30 miles per hour, and without any application or use of the brakes whatever on his part. There was some testimony relating to other issues; but, aside from what is shown above, there was nothing to indicate that the defendant knew or should have known-of any defect in the brakes; nor was there any proof that hydraulic brakes, either when the liquid is low or otherwise, were likely to cause a wheel to lock or to produce any.other such result as occasioned the plaintiffs’ injuries.
Seemingly, it should take no argument to demonstrate that the above evidence absolutely .failed to sustain the allegations of negligence. The one and only, defect suggested in the petition was that the brakes were in such condition as to cause the wheel to lock, and the sole, negligence charged was that the defendant knew of this fact and failed to advise the plaintiffs concerning it; whereas the evidence in regard to these matters was that the defendant had never “had any trouble by unusual clamping of the brakes or anything of that kind,” and the only defect of which he had knowledge was the leaking of the fluid, which, “instead of having the effect of locking the wheel, . . had the opposite effect.” The
If the defendant should have foreseen that some injury would likely result from a defect of which he had knowledge, or of which he should have known, it is not essential to liability that he should have anticipated the particular injury which did in fact result. Western & Atlantic R. Co. v. Bryant, 123 Ga. 77 (51 S. E. 20). But the rule just stated can have no. application where the injury is due, not to a defect of which the defendant knew or should have known, but to a separate and distinct defect of which the defendant was wholly ignorant and of which, so far as appears; he could not
But it is said for the plaintiffs that the laW requires that “every motor-vehicle, . . while in use or operation upon the streets or highways of this State, shall at all times be provided and equipped with efficient and serviceable brakes.” Ga. L. 1927, p. 234. Whether the duty of equipping cars with efficient and serviceable brakes should be held to be absolute within the scope of this statute (Monahan v. National Realty Co., supra; Western & Atlantic Railroad v. Meisler, 37 Ga. App. 570 (2) (140 S. E. 905)), we do not think any such duty was involved in this case. The intent of the statute was to require brakes with which a driver may reasonably retard or arrest the motion of the vehicle at will, this being the ordinary function of brakes as the term is generally understood; whereas, according to the plaintiffs’ allegations and contentions in the instant case, the brakes were such as caused the car, regardless of the will or action of the driver, to stop or swerve when it should have'kept running; and such a defect is not one which falls within the purview of the statute. In other words, the sense of the statute was to prohibit defects relating to the use which brakes are ordinarily intended to serve, ajid not to charge an owner as a mailer of law with defects which in no way interfered with such use, but resulted in some other improper performance of the vehicle. According to the reasonable interpretation, these were not in contemplation by the lawmaking body in the passage of this statute. We think therefore that the present case must be determined without reference to the statute in regard to brakes, and that the questions of negligence and diligence should
It follows that each of the verdicts was contrary to the evidence or without evidence to support it, and that the court should have granted each motion for a new trial upon the general grounds. In view of this ruling it is unnecessary to pass upon other contentions of the defendant, or plaintiff in error; but we may say that the motion made in each ease before verdict to dismiss the ease, because under the pleadings and the evidence the plaintiff was not entitled to recover, was properly overruled, since the motion included an attack upon the petition as well as the evidence; whereas there was no failure to allege a cause of action, but the trouble was that the allegations were unsupported by the evidence. Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654); Hughes v. Weekley Elevator Co., 37 Ga. App. 130 (2) (138 S. E. 633).
Certain excerpts from the court’s charge were excepted to upon the ground that they expressed opinions as to what had been proved. If these excerpts were subject to the criticisms lodged against them, proper corrections will doubtless be made by the trial judge should he again have occasion to instruct the jury in these cases. The other special grounds of the motion are controlled by the rulings made above.
Judgments reversed.