56 Ga. App. 621 | Ga. Ct. App. | 1937
James Darby, by next friend, brought this action against J. F. McKinney & Company, a partnership, and Howard McKinney, for damages for personal injury alleged to have been brought about by the negligent operation of an automobile belonging to J. F. McKinney & Company by Howard McKinney, an employee of said firm. J. F. McKinney & Company answered, and filed a cross-bill for damages for injury to its automobile alleged to have been caxtsed by the negligence of the plaintiff. Howard McKinney filed a separate answer, and also filed a cross-bill seeking damages for personal injuries alleged to have been caused by the negligence of the plaintiff. The jury returned a verdict in favor of the plaintiff in a named sum, and the defendants excepted to the overruling of their motion for new trial. The allegations of plaintiff’s petition make it appear that on October 30, 1934, plaintiff drove a model T Ford truck to Canton, Georgia, delivered a load of wood, and shortly after dark, about 5 :30 p. m., he started on the return journey home. About a mile from Canton the truck developed motor trouble, and plaintiff stopped for the purpose of undertaking to repair the trouble. At the point where plaintiff stopped there was a guard-rail beside the highway, on the right-hand side, in the direction in which he was driving, placed at a point slightly more than six feet from the edge of the pavement on said highway, and in stopping the truck he drove it as far off said highway as this guard-rail would permit. The only parts of the truck that remained upon the paved portion of the highway wore the left wheels and that portion of the truck extending over said wheels. In attempting to repair the truck plaintiff had a lantern for light, and after getting out of the truck he saw the lights of the automobile of J. F. McKinney & Company approaching in the same direction that he was headed, around a curve approximately 250 yards from him, and he immediately went to the rear of his truck with the lighted lantern, and approximately six feet from the edge of the pavement, “in order to give notice of the location of said truck on and adjacent the highway, which position he occupied until he was struck by said automobile.” The
In the motion for new trial exceptions are taken to the refusal of the judge to allow a witness for the defendant to testify that immediately after the accident he examined the wiring system of the plaintiff’s truck, and found that the wires leading to the lights of the truck were not connected with the battery. Had
The judge in his charge to the jury read them the specifications of negligence contained ira the plaintiff’s petition, which we have set out above. He further charged: “Now, as applicable to the contentions of the plaintiff, I charge you that if the defendant, Howard McKinney, was negligent in some one or more or in all of the respects and particulars named in the plaintiff’s petition, and if you should believe that as a result of such negligence, if you believe such negligence existed, the plaintiff was injured
Judgment affirmed.