52 Ga. App. 519 | Ga. Ct. App. | 1936
1. In this suit by the mother of a six-year old child, to recover for his death from being struck by an automobile kept by one of the defendants for the business and pleasure of such owner’s family, and driven by the other defendant, an adult daughter, the verdict for the plaintiff was authorized under the conflicting evidence as to the driver’s negligence, and the undisputed evidence as to the purpose and use of the automobile. The verdict was also authorized upon the questions as to whether the child exercised such due care as his mental and physical capacity fitted him for exercising in the actual circumstances of the occasion and situation, and as to the proximate cause of the homicide. See, as to the liability of a father keeping a car for the use of his family, for negligence by an adult son or daughter, Hubert v. Harpe, 181 Ga. 168 (183 S. E. 98); Griffin v. Russell, 144 Ga. 275 (87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994); Kennedy v. Manis, 46 Ga. App. 808 (169 S. E. 319); and as to the care required of a child, Crawford v. So. Ry. Co., 106 Ga. 870 (2) (33 S. E. 826); Smith v. Kleinberg, 49 Ga. App. 194 (174 S. E. 731), and cit.; Williams v. Jones, 26 Ga. App. 559 (106 S. E. 616); Eddleman v. Askew, 50 Ga. App. 540 (179 S. E. 247).
2. The defendants in their answer not only denied the plaintiff’s allegations, but pleaded that the negligence of the child in running from the sidewalk into the street in the path of their automobile, after becoming frightened by a dog, was the proximate and sole cause of the injury. Exception is taken to the charge of the court to the jury, that “when the defendants deny an allegation made by the plaintiff, the burden rests upon the plaintiff to establish the truth of such allegations as may be denied by the defendant; but where the defendants set up an affirmative defense, the burden rests upon the defendants to establish the truth of such affirmative defense by a preponderance of evidence.” This ease is analogous to Stewart v. Mynatt, 135 Ga. 637 (2), 638 (70 S. E. 325), where the Supreme Court held that it was not error to charge that “the burden is on the defendants to establish by a preponderance of
3. The judge charged the jury as follows: “The driver of the automobile is bound to use reasonable care to anticipate the presence on the streets of others having equal rights with himself to be there; and a pedestrian when lawfully using the public highways is not bound to be continually looking and listening to ascertain if automobiles are approaching, under the penalty that, if he fails to do so and is injured, he must be conclusively presumed to be negligent. All that is required of a pedestrian in the street, that is one walking in a street, is to exercise ordinary care and diligence for his own preservation and protection.” Exception is taken to this as an incorrect statement of the law applicable to an automobile driver and a pedestrian, for the reason that each has.an equal right to the use of a public highway; and as giving to the plaintiff’s child “a superior right to the use of the highway.” In Quick Tire Service Inc. v. Ball, 34 Ga. App. 122 (128 S. E. 205), a charge expressed in similar language, but using the words, “presumed to be negligent,” instead of “conclusively presumed to be negligent,” was held not subject to an exception that it “amounted to an expression of opinion that the failure of a pedestrian to be continually looking and listening . . would not constitute negligence.” The court further expressed the view that although the instruction “is
4. The following charge was given: “The plaintiff in this case alleges that she is the mother of [the deceased child], and that [the child] was killed as a result of being struck by an automobile driven by the defendant [daughter of the owner]. She further contends that she was dependent upon [the child] and that he contributed to her support. To be entitled to recover, she must establish the truth of these contentions by a preponderance of the evidence.” This instruction was not subject to the exception that it allowed the jury to find in favor of the plaintiff if they believed from a preponderance of the evidence merely that she was the mother of the child, that the child was killed by being struck by the automobile, and that she was dependent on the child and he contributed to her support, without regard to the other allegations of the petition and the contentions of the defendants as to the negligence or freedom from negligence of the driver of the car, as to whether the child exercised due care, and as to whether his death resulted from a
5. Where the plaintiff in the petition seeks to recover the full amount of damage from alleged negligence by the defendant, and the defendant does not plead the defense of comparative negligence, it is not error, in the absence of timely written request, for the court to fail to instruct the jury on the doctrine of comparative negligence, even though such a charge might be proper under the evidence. Georgia Power Co. v. Holmes, 175 Ga. 487, 490 (165
6. Another ground presents the contention that the court erred in failing to instruct the jury “upon a vital and correct principle of law raised by the pleadings and the evidence in the case, to wit, upon the theory of an independent intervening cause of the death of plaintiff’s son;” that an issue raised by the pleadings was that “the act of a dog, suddenly attacking plaintiff’s minor son,” caused him “to run from’the sidewalk out into the street backwards into the path of and against the automobile driven by the defendant;” that the court nowhere instructed the jury that “if they should believe that the death of the plaintiff’s minor son was produced by an independent agency, to wit, the dog’s conduct, and that such was the sole and proximate cause of the injury to and death of plaintiff’s child, there could be no recovery;” and that “it was error for the court to fail to instruct the jury on the definition of proximate cause.” It does not appear that there was any written request fox these instructions. The answer of the defendants alleged that the child, while playing on the sidewalk, was “attacked or threatened by a dog;” that he “became greatly frightened for fear that he would be bitten by the dog, and suddenly, and without looking or any warning whatsoever, darted off the edge of the sidewalk directly into the path of the automobile which was being driven” by one of the defendants; that the children with whom the deceased was playing “gave no indication of having been playing in the street, nor had they been;” that the defendant driver “was driving carefully, and used all dire diligence and caution in traveling upon said street; and that if the child was fatally- injured, the said child’s actions and negligence in running into the street and in the path of the automobile and into the automobile was the proximate cause of his injury.” The action of the dog being nowhere pleaded as an independent intervening cause or agency, but solely as collateral to or illustrative of the only two issues raised by the answer, the absence of negligence by the defendant driver and contributory negligence by the child’s own actions, the exception to the..failure to charge with regard to an independent intervening cause is without merit. While it was the duty of the court, even without request, to give appropriate instructions on every substantial and controlling
All of the grounds of alleged error being without merit, the court did not err in refusing a new trial to the defendants.
Judgment affirmed.