58 Ga. App. 799 | Ga. Ct. App. | 1938
The assignments of error on the judgment overruling the general demurrer and certain special demurrers to the petition are expressly abandoned in the brief of counsel for the plaintiff in error; and the judgment overruling certain other special demurrers to the petition, as complained of in the bill of exceptions, was not error. The question raised by those demurrers was again substantially raised by a special ground of the motion for new trial, and will be discussed later in that connection.
Mrs. Horne brought suit against the defendant to recover damages for the homicide of her husband. She alleged that on January 16, 1937, her husband was a member of the fire department of the City of Columbus, and on that day was driving a truck of the department en route to a fire in response to a fire alarm; that he was driving east on Thirty-fifth Street and approaching a railroad crossing; that a train of the defendant was running north,
Special ground 1 complains that the court charged the jury that at the time of Horne’s injury there was existing an ordinance of the City of Columbus which reads as follows: “In the event of- an alarm of fire being given, the apparatus of the fire department shall
The remaining special ground (which raises substantially the same question presented by special demurrer to the petition), alleges that the court erred in failing to instruct the jury, without request, that if the defendant, his servants, agents, and employees knew, or in the exercise of ordinary care could have known, of the approach of the fire truck, and thereafter, in the exercise of a like degree of care, were unable to yield the right of way to the fire truck, or did not have reasonable opportunity of yielding the right of way to the fire truck, the defendant would not be chargeable with violating the ordinance in question. The ground alleges that the court did charge “that if the defendant, his servants, agents, and employees, did not know, or, in the exercise of ordinary care, could not have known, of the approach of the fire truck, it would not be chargeable with a violation of said ordinance.” The ground alleges that “the effect of this instruction, as defendant contends, was to charge the jury that if the defendant . . knew, or in the exercise of ordinary care could have known, of the approach of the fire truck, the jury would be authorized to find that the defendant was guilty of violating said ordinance. The defendant contended, and argued to the court upon the trial of the case, that even though the defendant . . knew, or, in the exercise of ordinary care, could have known, of the approach of the fire truck, yet the defendant would still not be chargeable with a violation of said ordinance, unless, after said notice, the defendant, in the exer
Counsel for the plaintiff in error frankly admits in his brief that he has been unable to find any Georgia case that directly supports his contention that the failure to so charge the jury was error, but he cites a California case (Balthasar v. Pacific El. R. Co., 187 Cal. 302, 202 Pac. 37), which he contends does so. It is true that in that case the court held: “Notice to the person required to yield the right of way is essential, and a reasonable opportunity to stop or otherwise yield the right of way [is ?] necessary in order to charge a person with the obligation fixed by law to give precedence to the fire apparatus.” However, the court in that decision approved the following charge of the trial court: “If you believe from the evidence that the motorman of defendant’s car failed, refused, and neglected to allow the right of way to apparatus of the fire department of the City of Pasadena, when said fire apparatus was going to a fire, and that such motorman knew, or in the exercise of ordinary prudence should have known, of the approach of such fire apparatus, in time to have allowed said right of way, and that by reason of such failure, refusal, and neglect to allow said right of way, and as a proximate result thereof, one of the plaintiffs was struck, injured, or killed, or suffered property damage without negligence on his or its part contributing to such injury, death or damage, then you will find for that plaintiff.”
In the instant case the court charged the jury as follows: “I charge you further, that if the railroad, the defendant company, its employees, agents, and servants, in the exercise of ordinary care and complying with the rules of law, did not know of the approach of the fire truck, then, while it would be negligence per se [in ap
The ease at bar is a very close one on its facts and the law applicable thereto. The evidence authorized the jury to find that both the defendant and Horne (the plaintiff’s husband), at the time of the injury sued for, were violating valid ordinances of the city, and therefore were guilty of negligence per se. The evidence authorized a further finding that the negligence of each of them was a contributing cause to Horne’s death. Hnder the facts of the case it was for the jury to determine also (a) whether Horne, by the exercise of ordinary care, could have avoided the consequences of the defendant’s negligence; (b) whether Horne’s negligence was equal to, greater, or less than the defendant’s negligence; (c) whether the defendant’s negligence was the proximate cause of Horne’s death, or whether Horne’s negligence was the proximate cause thereof; and (d) if both Horne and the defendant were negligent, but if Horne’s negligence was less than that of the defendant, then how much should the amount of the plaintiff’s recovery be diminished. All of these questions were submitted to the jury with full and appropriate instructions from the court. Horne, at the time of his death was forty-seven years old, was earning $123 a month, and had an expectancy of 23.7 years. The plaintiff sued for the full value of his life and laid her damages in the sum of $25,000, and the jury returned a verdict in her favor for $2500. In view of the amount of the verdict, it appears that the jury determined all of the foregoing questions in favor of the plaintiff, with the exception that they found that both the defendant and Horne were guilty of negligence which contributed to Horne’s death, but that Horne’s negligence was less than that of the defendant, and that the amount of the plaintiff’s recovery should be diminished in proportion to the default attributable to Horne.
Judgment affirmed.