36 Ga. App. 805 | Ga. Ct. App. | 1927
The plaintiffs as partners or joint owners sued the street-railway company for damages to the plaintiffs’ automobile, resulting from its collision with the defendant’s street-car. The jury returned a verdict in favor of the plaintiffs for $350, the full amount of the alleged damage, and the defendant excepted to the overruling of its motion for a new trial. The question for determination is whether under the evidence the verdict was authorized. The contention is that the evidence discloses as a matter of law that the driver of the automobile was guilty of negligence equal to or exceeding that of the defendant, and could have avoided the collision by ordinary care.
The theory of the plaintiffs’ case was that on an exceedingly dark and foggy morning about eight o’clock the defendant’s agent so negligently operated its street-car as to cause the injury complained of; that the car was being operated at the alleged danger
Nathaniel Guidehigh, the plaintiff’s employee who was driving the automobile, testified:- “It was so foggy I couldn’t see, never saw a fog any heavier than that. I couldn’t hardly see an automobile or man or street-ear in front of me that didn’t have a light on it. The street-car hit me down there as I was coming back to Eome that morning in this coupé on Second Avenue. I was driving about a foot or foot and a half from the rail of the track before it hit me. At the time it hit me I was driving that close to it. My *coupé was hit on the left-hand side. The left front end of the street-ear hit me. . . The express wagon was in front of me just before the street-car hit me. As the street-car was approaching it had no lights at all on it. My automobile had lights on it at the time. The motorman on the street-car did not ring a bell or sound the gong or anything to give me notice of the approach. I was driving about six miles an hour at the time I was hit. I would say the street-ear was running something like twenty miles an hour when it hit me. . . The first thing I knew of the street car coming was when it hit me. I couldn’t see it because it had no lights on it and there was such a fog I could not see it. . . There was no time between when I first saw the street-car, after the truck in front of me had moved out of the way, until it hit my automobile. . . I would have missed if I had known the street-car was coming. I didn’t know it was coming on the street. I didn’t know what time it was going to run. I think I got in behind that express truck over there at the bridge and followed it aE the way from the bridge over the Oostanaula river right along. It was right in front, and it was foggy.”
The evidence introduced by the defendant was in some particulars contrary to the above, but that fact is, of course, immaterial in this court, since the jury were the final arbiters of the contradictions in the testimony. Taking into consideration the weather conditions and all the attendant circumstances, this court is unable to say, as a matter of law, that the finding in the plaintiff’s favor was contrary to law. The jury were fully, authorized to find that
Counsel for the plaintiff in error make the further contention in their brief that the verdict in favor of the plaintiffs for the full amount of the alleged damage is excessive, under the rule as
The first special ground of the motion complains that the court refused the defendant’s request to charge the jury as follows: “If you find, from the evidence, that the driver of the plaintiff’s automobile was running the automobile on or in such proximity to the street-railway track as to be struck by an approaching street-car, and the conditions were such, because of the fog or because of the express truck that was in front of him, that he could not see the street-car far enough ahead in time to get off the track before the street-car would strike the automobile, and he also had notice or knew, or by the exercise of ordinary care could have known, that a street-car was liable to come meeting him, then he would be guilty of negligence in staying on or so near said track under such conditions, which negligence would be sufficient to preclude, a recovery in favor of the plaintiff in this cause.” It can not be said as a matter of law that under the facts stated in the charge requested by the defendant, the jury could not have found the defendant negligent. Hence, the court did not err in refusing the request. See Davis v. Whitcomb, 30 Ga. App. 497 (2, 4) (118 S. E. 488).
The point made in the second, and only other, special ground of the motion is controlled adversely to the plaintiff in error by the ruling of this court in Western & Atlantic Railroad v. Reed, 35 Ga. App. 538 (6) (134 S. E. 134).
It follows from what has been said that the court did not err in refusing a new trial.
Judgment affirmed.