Harper v. Hall , 76 Ga. App. 441 ( 1948 )

1. Although the evidence might authorize a different verdict, where there is enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code § 70-202 and annotations under catchwords, "Any evidence."

2. Where distinct issues are presented in pleadings, it is not error for the trial judge to give in charge to the jury the law relating thereto, provided the same is supported by some evidence, even though very slight and consisting of inferences drawn from sworn testimony. See Camp v. Phillips, 42 Ga. 289; Brown v. Matthews, 79 Ga. 1 (4 S.E. 13); Evans v. Nail, 1 Ga. App. 42 (57 S.E. 1020).

3. When error is assigned upon the failure of the court to charge a required principle of law at a particular place in the charge, or in connection with a specified part thereof, the whole charge must be looked to in order to determine whether or not the alleged omitted part is error; and construing the charge as a whole, if the required part alleged to be omitted at a particular place is elsewhere contained in it, the charge is without error on this ground. See Brown v. Matthews. supra.

4. In the absence of a request, the trial judge is not required to charge provisions of law about which there is no issue, especially when the entire charge fully and fairly presents the real issues in controversy so as to leave no reasonable ground for apprehension that the jury did not understand the law of the case. See Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330 (155 S.E. 321).

DECIDED FEBRUARY 4, 1948. This action was brought in the Superior Court of Walton County by the defendant in error, J. M. Hall, who will hereinafter be referred to as the plaintiff, against the plaintiff in error, Emmett Harper, who will hereinafter be referred to as the defendant; and is based upon loss of services, medical expenses, doctors' bills, hospital bills, damages to an automobile, and loss of the use thereof, alleged to have been sustained by the plaintiff on account of a collision between his car, at the time being operated by his wife, and the truck of the defendant, in which collision it is alleged that the wife of the plaintiff was injured and his automobile damaged. The plaintiff alleged that his wife was driving his car from Gray, Georgia, to Macon, Georgia, on the Clinton Road approaching Walnut Creek, spanned by a very narrow bridge; that the road along which she was driving approaching said bridge led down a steep hill or descent; that upon approaching said bridge she slowed down the car, and the defendant, operating his truck behind her and in the same direction, ran into the back of her car resulting in certain alleged injuries to the wife of the plaintiff and in certain alleged damages to his car. The specific acts of negligence charged in the petition are as follows: (a) in that the defendant negligently drove his truck into the rear of the car of the plaintiff's wife; (b) in that the defendant did not keep a proper lookout for the car of the plaintiff's wife; (c) in that he failed to stop his truck before the same struck the car of the plaintiff's wife; (d) in that he was operating a truck with defective brakes; (e) in that he was operating a truck which was overloaded. The defendant filed an answer in which he denied all liability, and contended that the collision was the proximate result of the negligence of the plaintiff's wife in suddenly and without warning or cause stopping the car which she was operating in front of the defendant's truck at a time when he was so close to her that by the exercise of due care he could not stop said truck in time to avoid striking said car.

Without detailing the testimony of each witness, but viewing the evidence in its most favorable light in support of the verdict of the jury, findings of fact from the evidence were authorized as follows: The plaintiff's wife was operating his automobile on the road between Gray and Macon, and upon rounding a curve proceeded down a hill toward Walnut Creek Bridge. Walnut Creek Bridge is an old-type bridge and more narrow than the bridges of present construction, the same being eighteen feet wide and about the same width as the road. As the plaintiff's wife approached this bridge and was 150 yards from it, she saw a large truck meeting her from beyond the other end of the bridge. This truck was over the center line of the road as it entered upon the bridge, and this did not leave room on the bridge for her to meet and pass it there. Therefore she began slowing down in order to allow this truck to cross the bridge and meet her before she entered upon the bridge. The defendant was driving a truck, heavily loaded with wheat, behind the plaintiff's wife and traveling in the same direction and had been following her for some distance. As the plaintiff's wife either stopped several yards from the bridge or was slowing to a stop at this point, the defendant drove his truck into the rear end of the plaintiff's automobile, driving it into the bridge abutment, with considerable force, and thus injuring the plaintiff's wife and damaging his automobile. There was evidence that after the collision the brakes on the defendant's truck were examined while the truck was standing, by a witness getting in the truck and pushing down upon the pedal of the brake, and thus determining that the pedal would not go all the way to the floor of the truck. On the other hand, the defendant himself testified that the brakes were not adequate to stop the truck in the rear of the car of the plaintiff's wife in time to avoid striking it in the distance he was traveling behind her, with the load he had on his truck and at the speed he was driving down the hill toward her; that he did not slide his wheels with the brakes; that, in addition to the brakes, in an effort to stop he relied upon putting his truck in low gear, which he succeeded in doing with some difficulty before striking the plaintiff's car.

On the trial, the jury returned a verdict for the plaintiff in the sum of $1000, and judgment was rendered accordingly. The defendant filed a motion for a new trial on the general grounds, which he later amended by adding special grounds numbered 4 to 9 inclusive.

Special ground 4 complains of the court's charge as follows: "If you believe the defendant's truck was not equipped with efficient and serviceable brakes, that this would constitute negligence per se, and if you believe that such negligence, if you believe the defendant was guilty of negligence, was the proximate cause of the plaintiff's damages, then the plaintiff would be entitled to recover, provided the driver of plaintiff's car could not have avoided the negligence of the defendant, if the defendant was negligent, after such negligence became apparent or the plaintiff's driver could have discovered the same by the exercise of ordinary care and diligence." This is contended to be error on the grounds that the same is not authorized by the evidence, and that the same did not include a charge as follows: "If the plaintiff's driver could have avoided the results of defendant's negligence by the use of ordinary care and diligence for her own safety."

Special ground 5 complains of the court's charge as follows: "Now if you believe that at the time and place complained of that the defendant was driving said truck down a steep hill or descent at a time said truck was very heavily loaded at a high and negligent rate of speed with insufficient brakes to stop said truck before the truck struck the plaintiff's car, and if you believe that constitutes negligence and that such negligence, if the defendant was negligent, was the proximate cause of plaintiff's damages, if the plaintiff was damaged, plaintiff would be entitled to recover, provided the plaintiff's driver, Mrs. Hall, could not have avoided the consequences of defendant's negligence, if the defendant was negligent, after such negligence became apparent or Mrs. Hall could have discovered the same by the exercise of ordinary care and diligence." This is contended to be error on the grounds that the same is harmful and not supported by the evidence.

Special ground 6 complains of the court's charge as follows: "If you believe from the evidence that at the time and place complained of, that the defendant did drive said truck down a steep descent without reducing his speed while approaching a very narrow bridge thereby causing his truck to strike the plaintiff's car, and if you further believe that this constituted negligence and such negligence was the proximate cause of plaintiff's damages, if the plaintiff was damaged, I charge you that the plaintiff would be entitled to recover, provided the plaintiff's driver, Mrs. Hall, could not have avoided the consequences of the defendant's negligence, if the defendant was negligent, after it became apparent or she could have discovered the same by the exercise of ordinary care and diligence." This is contended to be error on the grounds, that said charge was unauthorized by the evidence, that it omitted to charge that the defendant would not be liable if the driver of the car could have avoided the negligence by the use of ordinary care and diligence, and that said charge was harmful.

Special grounds 7, 8, and 9 complain because the court failed to charge the law of accident, failed to define the meaning of proximate cause, and failed to charge the law of emergency.

The trial judge entered a judgment overruling the motion for new trial as amended, and this judgment is assigned as error. 1. Since the evidence amply authorizes the verdict, the general grounds of the motion for new trial are without merit, and the first headnote requires no further amplification.

2, 3. Special grounds 4, 5, and 6 of the amended motion for new trial state the contentions of the defendant, that certain excerpts taken from the charge were unauthorized by the evidence, and that the giving of the same in charge was harmful to the defendant and error. The jury was authorized by the evidence to draw the inference from the sworn testimony that the truck was not equipped with sufficiently efficient and serviceable brakes, taking into consideration the close proximity of the plaintiff's car to the truck which the defendant was operating, the extent of the down-grade and the weight of his truck and load, all of said facts being within the knowledge of the defendant.

Section 68-302 of the Code provides that every motor vehicle while in use or operation upon the streets or highways shall be equipped with efficient and serviceable brakes. A violation of this section is negligence per se. Railway Express Agency v.Standridge, 68 Ga. App. 836, 840 (6) (24 S.E.2d 504). The jury was also authorized to draw the inference from the sworn testimony that the defendant was driving his truck down a steep hill at a time when said truck was heavily loaded and at a rate of speed, the combination of which rendered it impossible to stop in time to avoid striking the plaintiff's car; also that the bridge in question was a very narrow bridge, that is, more narrow than modern bridges. How steep is a hill, and how narrow a bridge, are relative terms. The excerpts complained of in these special grounds of the amended motion for new trial were authorized by both the pleadings and the evidence. Where distinct issues are presented in pleadings, it is not error for the trial judge to give in charge to the jury the law relating thereto, provided the same is supported by some evidence, even though very slight and consisting of inferences drawn from sworn testimony. See Camp v. Phillips, 42 Ga. 289; Brown v. Matthews,79 Ga. 1; Evans v. Nail, 1 Ga. App. 42 (supra).

The principles of law complained of in special grounds 4 and 6 as having been omitted from the excerpts from the charge, therein specified, were given elsewhere in the charge. When error is assigned upon the failure of the court to charge a required principle of law at a particular place in the charge, or in connection with a specified part thereof, the whole charge must be looked to in order to determine whether or not the alleged omitted part is error; and construing the charge as a whole, if the required part alleged to be omitted at a particular place is elsewhere contained in it, the charge is without error on this ground. Brown v. Matthews, supra.

4. Special grounds 7, 8, and 9, which complain because the court failed to charge the principles of law relating to accident, and emergency, and the meaning of proximate cause, are not complete within themselves, because the grounds fail to set forth what should have been charged. However, by way of consideration of said grounds on their merits, it must be observed that, not only was it not error to fail to charge the theory of accident, but it would have amounted to error to have charged this principle even upon request. The pleadings and evidence of the plaintiff authorized a finding that the collision was the result of the defendant's negligence. The pleadings and evidence of the defendant would have authorized the jury to find that the collision was the result of the plaintiff's negligence. The principle of law relating to the theory of accident can only apply when under some theory of the case the injury is the result of the negligence of neither of the parties, but is a mere casualty due to the negligence of no one. See Ault v.Whittemore, 73 Ga. App. 10 (35 S.E.2d 526).

Also, under the facts of the case, the court was not required in the absence of request to give to the jury instructions as to the meaning of proximate cause and the law of emergency. SeeStewart v. Mynatt, 135 Ga. 637 (4) (70 S.E. 325); GeorgiaRy. Power Co. v. Turner, 33 Ga. App. 101 (4) (125 S.E. 598), and cases cited.

The judgment overruling the motion for new trial is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.