Griggs v. Holloway , 91 Ga. App. 333 ( 1954 )

Felton, C. J.,

dissenting. I dissent from the ruling in division four of the opinion and from the judgment of affirmance. I think the evidence demands a finding that Prince Holloway was negligent in some appreciable degree, and that his damages should have been reduced in some amount. In an ordinary case it probably could not be determined whether a jury apportioned damages or not, but in this case it is determinable under the facts and the court’s charge, as shown in division four of the opinion. The jury did not apportion Prince Holloway’s damages which they were required to do under the charge. This finding, under the charge of the court, means that the jury did not find that Prince Holloway was negligent or that, if he was negligent, his negligence did not contribute to the collision. There was uncontradicted evidence that Prince Holloway admitted that he was driving at 30 miles per hour. He himself also testified that “I was down to police court the 25th of September [1951], which is a lot closer to the day of the collision than this day I am here before the jury, and I had a better recollection of what happened at that time out there than I have now and it was fresher in my mind. In police court ... I said I was driving 30 miles per hour.” If Prince Holloway had not been negligent at all, his operating the car was a contributing proximate cause of the collision. I think that fact is irrefutable. If it were not a contributing cause, there would have been no collision. However, if Prince Holloway had not been negligent in any way, his contribution to the collision would not have penalized him, since negligence on his part alone would attach legal consequences to him. Since it is indisputable that Prince Holloway’s speed contributed to the collision, and the evidence demands a finding that his speed was negligent operation, and since the jury did not reduce Prince Holloway’s damages in proportion to his negligence, as it was required to do under the facts and charge of the court, the verdict is erroneous and a new trial should be granted.