8 S.E.2d 109 | Ga. Ct. App. | 1940
Under the law and the evidence the jury was authorized to return a verdict in favor of the plaintiff. The court did not err in overruling the motion for new trial.
There was testimony on behalf of the defendants that they operated two plants for the manufacture of brick, one known as the Dixie Brick Company at Dixieland, Alabama, about five miles south of Girard, Alabama, and another, Bickerstaff Brick Company, about six and one-half miles south of Girard; that on August 29, 1938, the Bickerstaff plant, at Brickyard, Alabama, filled four orders; two of these were delivered at the plant and were hauled away by the purchasers on their own trucks; that the other two orders were delivered by Clay Products Exchange, the first of these leaving the plant at 10:15 a. m. and traveling to the south, and not in the direction towards the scene of the accident, and the other, leaving the plant at 1:10 p. m. and being consigned to a point seven miles north of Columbus, by way of the Chattahoochee river bridge at Girard, connection with Columbus, Georgia, this delivery being completed by 4 p. m., both of these deliveries being made by a blue truck; that the plant closed at 5 p. m.; that this Bickerstaff plant had no red truck in use or on its yard, and no other truck in the business of Clay Products Exchange left the plant that day except the one blue truck on the two missions above mentioned; that the Dixie plant at Dixieland filled three orders on August 29, 1938, and in each case the purchaser took delivery at the plant and hauled the brick away in his own truck; that no truck was used by the plant on the day in question and the plant closed at 5 p. m.; that the trucks of Clay Products Exchange at the time mentioned consisted of three blue trucks and one red truck. George Hale Bickerstaff, one of the defendants, testified that on August 29, 1938, the red truck was not used at all, and that it did not leave the yard that day, and J. F. Bickerstaff, another defendant, testified that if any truck of Clay Products Exchange was on the road after 5 p. m. on the day in question it was not in the scope of the company's business.
With reference to the question of identification of the truck which struck the plaintiff the following testimony was also adduced: Eddie Howard, who witnessed the accident, testified that he saw a loaded truck come by his house, a red cab with "Clay Products Exchange" written on it, a Ford V-8 truck, and had seen trucks of the Clay Products Exchange pass along that road for a long time. Albert Mack gave similar testimony. George Hale Bickerstaff, one of the defendants and in charge of the plant at Dixieland, *268 testified that he knew of no one else running trucks with the name of Clay Products Exchange, and nobody had authority to do so, and that if trucks were on the road in the vicinity of the accident with such name on them they were trucks of the Clay Products Exchange and belonged to the company; that "I don't know whether or not our red truck went to your job [referring to counsel for plaintiff] about that time. I think we were shipping you brick about that time. . . The red truck served both plants, went from one to the other. . . I was supplying mighty few jobs in Columbus about that time. . . I can't say we were not supplying your job in Columbus on the 29th and sending broken packages out." Hugh Bickerstaff, another defendant and who was on duty at the Bickerstaff Brick Company, testified that "We close usually at about 5 p. m. Sometimes we remain open later and send out loads of brick. The red truck serves both our plants. . . I do not know where the red truck was on August 29th. I don't remember seeing it at all that day. We sometimes sent small orders to Columbus. We did not send them late by our trucks. I would say this, reiterate what I said, that if a truck were loaded, and one of our trucks, after closing time, I would know about it. There were no trucks around here with `Clay Products Exchange' on them but our trucks. I know of no sale of our trucks with our name painted on them. I certainly would not attempt to say how many loads went out on any particular day unless I referred to this record here." Floyd E. Day, a policeman, testified that he went to the hospital to see the plaintiff on the afternoon of the accident, and that he said a "brick company" truck ran into him, a red truck loaded with brick; that he then went to the office of the defendants and looked over their records, and did not find a V-8 truck with red cab at the yard of either of the plants and that they did not show him one. With reference to the question of identity of the driver of the truck which struck the plaintiff the following testimony was in evidence: The plaintiff testified that, while he could not identify him, he was a mulatto negro. George Hale Bickerstaff testified that Buddy Johnson was the driver of the red-cab truck used in their business, and was a real bright mulatto negro. Hugh Bickerstaff testified to the same effect.
The plaintiff introduced in evidence statutes of the State of Alabama, as pleaded, to the effect that "The territory contiguous *269 to a highway not comprising a business district when the frontage of such highway for a distance of three hundred feet or more is mainly occupied by dwellings and buildings in use for residence" is a residence district; that the maximum rate of speed in such residence district is twenty miles an hour; that upon all highways of sufficient width except upon one-way streets the driver of a vehicle shall drive the same upon the right half of the highway; that drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving the other at least one half of the main traveled portion of the roadway as nearly as possible; all of which provisions it was alleged in the petition the defendants had violated.
The grounds of the motion for new trial, besides the general grounds, are that the uncontradicted evidence shows that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself of the defendants' negligence, and, therefore, he was not entitled to recover; that the alleged tort having been committed in the State of Alabama, and no Alabama statute as to the conduct of the plaintiff having been alleged or proved, the common law governs the conduct of the plaintiff, and that the undisputed evidence shows that he was guilty of negligence that contributed to his injury, and, therefore, under the common law he was barred from recovery; that there was no evidence identifying the truck which struck the plaintiff's arm or that the driver thereof was their servant and acting in the scope of his employment at the time of the plaintiff's injury, and that the plaintiff failed to prove his case and was not entitled to recover. These grounds may be treated together.
The questions here presented are: Was the truck which struck the plaintiff's arm the property of the defendants? Was the driver of the truck the servant of the defendants and engaged at the time of the injury in the prosecution of their business and in the scope of his employment? Was the plaintiff guilty of any negligence which barred recovery from the defendants? It is true, as contended by plaintiffs in error, that the alleged tort having been committed in the State of Alabama, and no statute of that State governing the conduct of the plaintiff having been pleaded or proved, it will be presumed that the common law was in force in that State (Southern Railway Co. v. Cunningham,
It is contended by the plaintiffs in error that the failure of the plaintiff to remove his arm from the window amounted to negligence contributing to his injury, and that, therefore, he can not in any event recover. We can not say as a matter of law that the plaintiff was negligent in the manner alleged, but, on the contrary, we think that under the circumstances shown by his testimony the jury would be authorized to find that an emergency existed and that he was not negligent. If, as the uncontradicted evidence showed, the oncoming truck, traveling at twenty-five to thirty miles per hour, was only fifty or sixty yards away when the plaintiff saw it, or in the exercise of ordinary care should have seen it, the time elapsing until the arm of the plaintiff was struck was less than five seconds. In that brief interval he succeeded in getting to the right of the road as far as safety would permit, apparently at such distance that a passing truck, properly driven, would not come in contact with his car. But it appears that because of the rough roadway and the speed of the truck its rear end was swaying, and that in passing it struck the arm of the plaintiff as it rested upon the open window. Evidently it did not occur to the plaintiff that his arm was in danger with the outer edge of the running board a foot from his arm. He had, without mishap and in the same manner, passed many cars on the same roadway. But whether or not he should, while turning to the right of the roadway to escape from the swaying truck, have also realized within less than five seconds that to avoid injury to his arm he should withdraw it *271 into the car is a consideration about which we think reasonable men might differ. It was for the jury to determine whether an emergency existed, in which case the plaintiff, under well-established law, could not be held to the exercise of that care and circumspection which ordinarily would be required of him. We think that the jury was authorized to find that the plaintiff was injured by the negligence of the driver of the truck, and that he was not guilty of any negligence contributing to his injury.
But to recover the plaintiff was also required to show that the relationship between the defendants and the driver of the truck was that of master and servant, and that at the time of his injury the driver was in the prosecution of the defendants' business and in the scope of his employment. Code, § 105-108;Greeson v. Bailey,
While there was testimony from the defendants that one Buddy Johnson was the only driver of their red truck and that he was not on duty on August 29, 1938, it was also testified that he was a bright mulatto negro. The driver of the truck which struck the plaintiff was, according to his testimony, a mulatto negro. The police officer who visited the plaintiff at the hospital shortly after the accident testified without objection that at that time the plaintiff told him that the truck was hauling a load of brick. It is well settled that circumstantial evidence may sometimes outweigh positive testimony. Bowie v. Maddox,
Whether the facts and circumstances above enumerated on the question of ownership of the truck and identity of its driver, and as to whether or not he was acting in the prosecution of the defendants' business and in the scope of his employment at the time of the injury, were sufficient to overcome the testimony of the defendants in those respects, were matters for the determination of the jury. In Barnum Bailey Shows Inc. v.Himmelweit,
Judgment affirmed. Stephens, P. J., concurs. Felton, J.,disqualified.