47 S.E.2d 514 | Ga. Ct. App. | 1948
1. The excerpt from the charge complained of in special ground 4 of the motion, considered with the charge as a whole, was not error requiring a new trial, for the reasons stated in this division of the opinion.
2. The charge on accident, if improper, tended to help rather than harm the defendant, by giving it the benefit of an additional defense, and was not error requiring a new trial.
3. The evidence authorized the verdict.
1. Special ground 4 of the motion complains of the following charge: "The plaintiff alleges further, gentlemen of the jury, that the driving of the defendant's truck on the left-hand side of the street at the time and place in question was also an act of negligence, and in that connection I charge you that the State law requires every person driving a motor vehicle upon the roads or highways of this State to drive as far to the right as humanly possible in order that traffic may pass without interference." The defendant contends that this charge was not sound as an abstract principle of law, that it placed a greater burden on the defendant than the law imposed upon him, in that he was merely required to exercise ordinary care, and, in meeting another to turn to the right of the center line of the highway, so as to pass without interference. The plaintiff contends that the charge, if error, was harmless, in that it did not deal with a material issue *3 in the case, and applied with equal force to both parties, and was qualified and explained in other parts of the charge and cured by the charge as a whole. We think that the charge was an inaccurate and incorrect statement of the law requiring an operator of a vehicle, in meeting another vehicle coming from the opposite direction on the same highway, to turn to the right of the center of the highway, so as to pass without interference (Code, § 68-303c). This does not mean, however, that the charge was necessarily harmful. Whether or not the charge was harmful, precepts a more difficult question. To charge the law incorrectly on a material issue, which is harmful or calculated to harm the complaining party, is error requiring a new trial; but an incorrect charge, or a charge on an immaterial point which is not harmful, does not require a new trial.
The plaintiff alleged that the defendant was negligent in operating its truck "over and upon the left side of said street and running said truck into the automobile in which petitioner was riding." That allegation was denied by the defendant, which alleged that an emergency was created when the plaintiff backed her car into the street and into the path of the oncoming truck, which emergency called for a prompt decision and immediate action by the driver of the truck, and "that in the exercise of his best judgment said driver turned to the left in an effort to go in front of plaintiff's automobile." The evidence of both parties showed that the plaintiff did back her car from a driveway into the street, and that she tried to drive back into the driveway as the truck approached, and that the truck crossed over the center of the highway to the left side of the street where the collision occurred. It was not contended by either party or shown by the evidence of either party that the collision occurred because of the failure of the truck driver to turn to the right of the center of the highway, as far as was humanly possible. It is clear that the collision was brought about by reason of the effort of the truck driver to pass the plaintiff's car on the left side of the street. The court properly instructed the jury later on in the charge that, if the truck driver turned to the left to avoid a collision, when the automobile of the plaintiff back suddenly and unexpectedly into the street in front of the truck, that such action on the part of the truck driver would not be a violation of the rule of the road requiring *4 drivers of meeting vehicles each to turn to the right of the center of the highway so as to pass without interference, and "in that event a recovery could not be had by the plaintiff against the defendant on account of the alleged violation of said rule of the road." It is conceded by counsel for both parties that this last charge on emergency presented in proper language the correct rule of law as applied to the issue raised by the defendant's pleadings and the evidence.
We recognize the rule that the error in an improper charge is not cured by merely giving a correct charge which does not call attention to the erroneous charge or withdraw or correct it. SeeSecurities Investment Co. v. Jett,
The last charge referred to, which was conceded to be a correct statement of the law, and applicable to the facts of the case, definitely related to the same subject-matter as the charge complained of, namely, the rule of the road requiring a driver in meeting another vehicle to turn to the right of the center of the highway; and the jury was clearly instructed that, if the defendant was confronted with an emergency, as detailed in the charge, his turning to the left to avoid a collision would be no violation of the rule of the road. We think that the reasonable construction to be placed upon the charge as a whole is that the excerpt under consideration was qualified and modified by the later charge referred to, which was applicable to the facts of the case.
2. Special ground 5 complains of the charge of the court on the subject of accident, as confusing and misleading to the jury, but we do not think that it was harmful to the defendant. The charge complained of did submit to the jury an issue that had not been pleaded; but we think that it tended to help rather than harm the defendant by giving it the benefit of a defense which it did not plead. "An instruction of the court which is favorable to the complaining party is not ground for a new trial." Daughtry
v. Georgia Power Co.,
3. As to the general grounds of the motion, it is sufficient to say that the evidence authorized the verdict in favor of the plaintiff, and the court did not err in refusing the motion for new trial.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.