112 Ga. App. 777 | Ga. Ct. App. | 1965
1. Where the plaintiff’s action for damages on account of the death of her minor son was originally brought against four named defendants, and where the plaintiff voluntarily dismissed her action as to one defendant, and where the court thereafter granted a nonsuit as to another defendant, and the case proceeded against the remaining defendants, a father sued as owner and his son sued as the driver of a family purpose automobile, it was not reversible error, under the facts in this case, for the court in charging the jury on the contentions of the parties to instruct them that they should disregard those allegations of plaintiff’s petition relating to the negligence of the defendants who were no longer in the case, and that they should disregard those allegations of the defendants’ answer which admitted the allegations of the plaintiff’s petition respecting the negligence of the stricken and nonsuited defendants as against the contention that such instruction was confusing and misleading to the jury and had the effect of removing from the jury’s consideration the question of whether the negligence of the other defendants was the sole proximate cause of the death of the plaintiff’s son. Keough v. Georgia Power Co., 40 Ga. App. 336 (7) (149 SE 435); Atlanta Coca-Cola Botl. Co. v. Dean, 43 Ga. App. 682 (2) (160 SE 105). The defendants against whom the case proceeded had filed, in effect, a general denial of the allegations of the petition respecting their negligence, and in addition had alleged in paragraph 38 of their respective answers that the collision was occasioned by the combined and joint negligence of the defendants Strickland and
2. Ground 8 of the motion assigns error on the following portion of the charge: “Now, gentlemen, since there is a difference in the degree of care as I have pointed out to you heretofore in this charge, the fact that you might return a verdict against one of these defendants would not necessarily mean that you would have to return a verdict against the other defendant in the case. For instance, if you should find from the evidence in the case that the driver of the Scoggins automobile, that is Johnny D. Scoggins, was not grossly negligent, and you would have to find that he was grossly negligent, and I will give you a definition of that expression in a few minutes, then Mrs. Hughes would not be entitled to recover from that defendant; and likewise, if you should find that the defendant, Johnny D. Scoggins, was operating the automobile of his father at the time under what we know as the family purpose doctrine, that is that his father owned the automobile and maintained it for his own use and pleasure and for the use and pleasure of other members of his family, including his son who lived with him, and that he was operating the automobile in that situation and under those circum
3. The general grounds and grounds 4, 10 and 11 of the motion for a new trial, as well as the motion for a judgment notwithstanding the verdict, may be considered together. The evidence amply authorized the verdict against the defendants. The husband of the plaintiff having testified that she was his wife and that she was the mother of the deceased, this evidence sufficiently proved the necessary relationship between the plaintiff and the deceased. Code § 38-303. Under the facts and circumstances developed on the trial the jury was authorized to find that David Hughes died as a result of the collision in question. With respect to the collision and the proximate cause thereof, and with respect to the question as to whether the evidence sufficiently showed gross negligence on the part of the defendant, Johnny D. Scoggins, we need say only that the jury was authorized to find that the collision occurred at about 12 at night at a time when it was raining and sleeting and very cold and the roadway wet and slippery; that immediately before the collision the defendant, Johnny D. Scoggins, was driving the automobile in question at 57 miles per hour; that, although there was ample space for him to have driven to the right thereof, he ran into the rear of an automobile stopped near the center line of the road with its blinker operating and indicating a left turn; and after striking that automobile collided with an oncoming automobile at about the center of the highway. This evidence was enough to authorize the jury to find that he was guilty of gross negligence.
With respect to the charge of the court to the jury: the court, having instructed the jury as indicated in the preceding headnotes of the opinion on the burden of proof, did not err, in the absence of a timely written request, in failing to expressly instruct the jury that in order for the plaintiff to recover she must prove by a preponderance of the evidence that she was the mother of the deceased, David Hughes, and that the deceased, David Hughes, died as a result of injuries sustained in the collision. Central of Ga. R. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (2) (64 SE 1128).
Judgment affirmed.