Clough v. Greyhound Corporation , 91 Ga. App. 246 ( 1954 )

Quillian, J.

In special ground 6 of the amended motion for new trial, error is assigned on the overruling of an objection to the admission of evidence that no charge was made at the police station against the driver of the bus in which the plaintiff was a passenger. An acquittal in a criminal proceeding dealing with the same subject matter is not evidence for the defendant in a civil action. Cottingham v. Weeks, 54 Ga. 275. A plaintiff may not show, in a civil action for damages resulting from an automobile collision, that the defendant was adjudged guilty in traffic court for an offense in connection with the same transaction. Padgett v. Williams, 82 Ga. App. 509 (3) (61 S. E. 2d 676). Accordingly, it would be improper to allow a defendant in like circumstances to show that no traffic case had been made against him or that, if made, he had been adjudged not guilty. While this error might not be sufficient to reverse some cases, it is nevertheless error in any case because, if a plaintiff cannot introduce evidence to show that a case was made, then by the same process of reasoning the defendant cannot show that such a case was not made. The rule that error, in order to be reversible, must be harmful is recognized; but in this case the evidence was certainly in a close and doubtful case. In close and doubtful cases error is reversible which otherwise would not warrant the setting aside of a verdict. Savannah, Fla. & Western Ry. Co. v. Harrigan, 80 Ga. 602 (2) (7 S. E. 280).

Special ground 5 of the amended motion for new trial contends that the court erred in charging the jury as follows: “In connection with the matter of damages, if you come to consider the question of damages in the case, the court charges you that where by negligence one is injured, he is bound to lessen the damages so far as is practicable by the use of ordinary care and diligence. The court further charges you that if a passenger is injured by the negligence of a carrier, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence, and ordinary care or diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” It is contended that the rule referred to by the court is in regard to contracts and has no application to a tort action. Code § 105-2014 provides as follows: “Where by negligence one is injured, he is bound to lessen the damages-as far as is practicable by the use of ordinary care and diligence; but this does not apply in cases of positive and continuous torts.” This Code section was taken from four Supreme Court decisions, one of which is Georgia R. & Bkg. Co. v. Eskew, 86 Ga. 641 (5, 6) (12 S. E. 1061, 22 Am. St. R. 490), in which (page 647) the following is held: “A person upon whom a wrong has been committed is under obligation to lighten the damages as much as he can by the use of ordinary care and diligence. To the extent in which his damages are increased by his failure to observe such care and diligence, they are the result of his own negligence.”

This ground, however, is incomplete within itself, in that it fails to set out any evidence. The evidence in some cases would authorize this charge; in others it might not. Since the ground here fails to show whether the charge was authorized, it is incomplete and cannot be considered by this court.

Ground 4 of the amended motion complains that the court, when charging on the plaintiff’s contentions, erred in not charging more fully and in detail the plaintiff’s contentions as to his injuries. The court charged on his contentions as follows: “At the time of the said impact, it is alleged, plaintiff was sitting in his seat in the bus and as the result of the collision of the bus with the telephone pole the plaintiff was thrown forward violently into the back of the seat in front of him, causing injuries to the plaintiff as set out in the petition, and in paragraph 15, the next paragraph, the plaintiff undertakes by allegation to detail the alleged injuries claimed to have been suffered by him. It is then alleged that as the result of the accident the plaintiff has suffered and will continue to suffer intense and excruciating pain.” The court further charged: “The pleadings in the case will be out with you and you will have recourse to them as often as necessary or desirable to inform yourselves of the pleadings and exact contents thereof.” The charge as a whole fully submitted the plaintiff’s contentions to the jury, and if the plaintiff desired a more detailed charge as to his injuries, he should have made an appropriate request therefor. Batts v. Bedingfield, 204 Ga. 160, 164 (48 S. E. 2d 848); Fortson v. Caudell, 74 Ga. App. 276, 280 (39 S. E. 2d 579).

Although the general grounds of the motion for new trial are not here decided, since the case is to be tried again, nevertheless the sufficiency of the evidence will be discussed in order to point out the fact that this is at least a close and doubtful case. On the question of the negligence of the driver of the defendant’s bus, it appears without dispute that the driver of the bus ran all four wheels off the highway and hit a pole or post which was situated alongside the road; that this pole or post was anywhere from 6 feet to 30 feet tall and anywhere from 6 inches to 8 inches in diameter; that, when the bus struck this object, it broke off at ground level and the bus traveled some 25 feet before stopping; that, at the moment of impact, the bus was traveling not less than 15 miles per hour, but immediately prior thereto had been traveling 25 miles per hour; that the bus company has a rule to the effect that whenever an occurrence out of the ordinary which may result in damage to one of its vehicles takes place, another bus is sent to the scene and all passengers and baggage transferred from the bus which may have been disabled to the other bus; that on the occasion in question this procedure was followed, but the bus which hit the post was on examination found not to have been disabled in any way; that at the time of the impact the plaintiff was dozing or sleeping on a seat of the bus and was thrown onto the floor; that the fall snapped his neck and his coccyx and head were bumped; that shortly thereafter all passengers were given cards to fill out and on his card the plaintiff stated that he was hurt; that this card was not introduced in evidence by the defendant, although it was delivered into the possession of the defendant at the time it was signed; that he suffered pain at that time and has continued to suffer pain; that the plaintiff had previously undergone a prostate operation on August 30 and another on October 25, 1949, preceding the collision of March 3, 1950, but had recovered therefrom; that immediately after the bus hit the post he again began to pass blood, and this first occurred a few hours after the impact; that, on account of the bleeding, he stopped off in Palmetto on his way to Fort Myers and stayed until the next day, then went on to Fort Myers; that he had also suffered other injuries prior to 1949 but had recovered from them and was able to go about his business of raising gladiolas; and that since March, 1950, he suffered continuous pain and was unable to bend over and unable to do any physical work. The testimony of the defendant’s witnesses who were on the bus was to the effect that they heard the plaintiff make no complaint and knew nothing about him falling to the floor at the time of the impact. The plaintiff and two physicians for him testified as to his impaired physical condition. A doctor for the defendant, who examined the plaintiff prior to the trial, found disabilities which, however, he attributed to previous injuries.

A part of the evidence set out herein was the testimony of the plaintiff himself, and although certain circumstances were introduced by the defendant tending to show a different state of facts, the evidence on behalf of the plaintiff, together with the circumstances showing negligence on the part of the defendant, as herein set out, authorized a verdict in his favor. Thus, at least a close and doubtful case was presented.

The trial court erred in denying the motion for a new trial for the reasons set out in the first division of this opinion.

Judgment reversed.

Gardner, P. J., Townsend, Ca7'lisle, and Nichols, JJ., concur. Felton, C. J., disse?its.