Georgia Stages Inc. v. Young , 73 Ga. App. 2 ( 1945 )

1. The special grounds of the amended motion for new trial, assigning error on the charge of the court, are without merit.

2. The verdict was authorized by the evidence.

3. The court did not err in overruling the motion for a new trial.

DECIDED OCTOBER 4, 1945. Mrs. Julian Lenwood Young brought suit for $30,000 damages against Georgia Stages Inc., and its bus driver, Gula Bryan, jointly. She alleged that the death of her husband, Julian Lenwood Young, was due to certain acts of negligence on the part of the bus driver while her husband with others was riding as a passenger for hire on a bus of the defendant corporation on State highway 33, between Moultrie and Sylvester. Omitting the paragraphs not here material, the petition alleged substantially as follows: (5) On September 1, 1943, Julian Lenwood Young was the husband of the petitioner, and was the father of her children: Tracy Young, age four years, Latrelle Young, age three years, and John Lenwood Young, who was born on September 19, 1943, subsequently to the death of his father. (7) As the bus on which the petitioner's husband was riding was approximately six miles south of Sylvester in said county [Worth], it collided with a truck being driven by Willie Crapps, and as a result the petitioner's husband was killed. (9) The highway over which such bus was traveling at that time was paved and was 18 feet wide. The collision occurred on a concrete bridge across such road, which was 18 feet wide and 120 feet long. (10) Just before and at the time of such collision, said bus was traveling at a high and reckless rate of speed, which was in excess of 55 miles per hour, and the speed of such bus was not reduced as it approached such bridge and as it was meeting the truck driven by Willie Crapps. (11) At the time the bus on which your petitioner's husband was riding as a passenger met the truck being driven by Crapps, the left wheels thereof were across the center line of such public highway with reference to the direction in which he was traveling, and were approximately two feet to the left of such center line. (12) As a result of the careless and negligent conduct of the driver of such bus, the bus collided with and struck the truck being driven by Crapps, at the front of the left side, which was at least seven or eight feet past the front of such truck. As a result of such collision, the left side of the body of such truck, which was built of wooden boards or planks, was torn and splintered. (13) The petitioner's husband was sitting in one of the seats on the left side of such bus, and was struck in the face by a piece of wood driven from the body of such truck; such piece of wood entering the face of her husband and penetrating his head, as a result of which death immediately ensued. (14) The highway to the north and south of such paved road was straight and level for approximately half a mile. (15) At the time of his death the petitioner's husband was 25 years of age and was earning $40 per week as a taxi driver.

It was alleged that the defendants were negligent in the following particulars: (a) In that said bus was being operated at said time at a rate of speed in excess of the speed limit authorized by the laws of Georgia. (b) That the operator of such bus, which was meeting a truck coming from the opposite direction on the same highway, did not turn to the right of the center of the highway so as to pass without interference. (c) That the operator of such bus did not reduce its speed as it approached and went upon the bridge where it collided with the truck going in the opposite direction. (d) That the operator of the bus did not give to the truck, which it was meeting at the time of the accident, equal right upon the highway, in that the driver of such bus did not have it under control as it approached such bridge. (e) In that it negligently and carelessly ran into and struck the approaching truck, and as a result thereof the petitioner's husband was killed.

To the petition the defendants filed their answer, in which they admitted certain paragraphs and denied others. They denied the paragraphs alleging negligence on their part. To paragraphs 5 and 9 the defendants answered: for lack of sufficient information, they can neither admit nor deny the allegations therein. And to paragraph 13 they answered: for lack of sufficient information, the defendants can neither admit nor deny the allegations of paragraph 13, except they admit the death of Mr. Young.

Further answering, the defendants set up in substance the following: that on the date and occasion in question, the northbound bus was crossing the Horse Creek bridge, after having approached the bridge cautiously and at a rate of speed not in excess of 20 miles per hour, and had practically completed crossing this bridge, approximately 120 feet long and 18 feet wide, when the truck driven by Willie Crapps entered upon the bridge from the opposite direction; that said truck was being driven and operated at a speed in excess of 55 miles per hour, and as it approached the bridge, the truck swerved to the right as though it would stop and allow the bus to get off the bridge before the truck attempted to enter upon the bridge; that, however, the speed of the truck was so high the driver was unable to stop in time, and, in order to avoid striking the bridge post of concrete, the said Willie Crapps drove the truck on and upon the bridge, with the truck so far across the center line of the bridge that the left side of the truck body struck the left front side of the bus, and a plank or planks from the body of the truck entered through the windshield of the bus and struck and killed the husband of the petitioner; that his death resulted solely and proximately from the negligent operation of said truck by Crapps; and that the defendants were entirely without fault.

The evidence was conflicting, but the jury resolved the conflicts in favor of the plaintiff and returned a verdict for the plaintiff for $18,000. The exception is to the overruling of the defendants' motion for a new trial. 1. In addition to the three general grounds of the motion for new trial, the plaintiffs in error filed an amendment with six special grounds assigning error on the charge of the court.

It is contended in special ground 4 that the trial court erred in charging the jury as follows: "I will state in this connection at this time [referring to the rules of law applicable], gentlemen, that common carriers transporting passengers for hire, under the laws of this State are required to exercise extraordinary diligence in transporting their passengers, and the law says: ``Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. The absence of such diligence is termed slight-neglect.'" A later portion of the charge was as follows: "I stated to you during the course of these instructions that the defendant in this case, Georgia Stages Inc., as a common carrier of passengers for hire, is bound to exercise extraordinary care and diligence in the transportation of its passengers. The law says: ``Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. The absence of such diligence is termed slight neglect.'" In a still later portion the judge charged: "It is the law of this State that a common carrier of passengers for hire is bound to exercise extraordinary care and diligence in the transportation of its passengers. Even slight neglect on the part of its employee, resulting in personal injury to one lawfully upon one of its vehicles, may entail liability on the part of the carrier."

It is contended that such charges were erroneous and injurious to the plaintiffs in error, because: (a) The repetition of this principle of law was argumentative. (b) This impressed the jury that the court was fearful they would not bear in mind the duty of extraordinary care due by common carriers to passengers. (c) It impressed the jury that the court was against the defendants, and tended to mislead the jury in believing that the court had the opinion that they should find against the plaintiffs in error. (d) The repetition of the same rule tended to and did weaken principles of law favorable to the defendants, and impressed the jury with the thought that the court was of the opinion the defendants below had transgressed the rule of extraordinary care; and the excessive verdict was evidence of the harm which this impression had upon the jury. (e) The use of the word "even" in the third repetition as to this rule unnecessarily emphasized to the jury that only slight neglect was necessary to hold the defendants liable for the death of the deceased; such was an expression and intimation of opinion by the trial judge; and the repeated expressions were calculated to and did impress the jury with the idea that it permitted the plaintiff to recover, if the defendants failed in any respect to exercise extraordinary care and diligence in the operation of the bus, whether or not such failure was predicated on one or more of the alleged acts of negligence.

The charge was not subject to the criticisms directed against it, and was not error for any reason assigned. It was not argumentative, although it did contain repetitions. Besides, during the charge, the court explained to the jury: "While there may be some duplications in the giving of some of these instructions I now have before me, it is rather difficult to separate or segregate the requests to charge and the charge given you by this court in any satisfactory way, so if there is any duplication, you will understand that the court is not trying to stress unduly any point in the charge, but I am merely trying to present the instructions I think necessary in the case." We think that the charge was fair to the parties and not argumentative or expressive of opinion. It is to be noted also that four times in the charge the judge stated that the burden of proof was upon the plaintiff to make out her case by a preponderance of the evidence before she could recover.

2. In special ground 5, it is urged that the court erred because of the third repetition in the charge on extraordinary care and diligence, in using the word "even," by emphasizing to the jury that only slight neglect was necessary to hold the movants liable for Young's death; and that the use of the word "even" rendered the charge argumentative and amounted to an expression of opinion as to the proved facts, and further impressed the jury with the idea that the charge permitted the plaintiff to recover, if the jury found that the defendants failed in any respect to exercise extraordinary care and diligence in the operation of the bus, irrespective of whether or not such failure was predicated on one or more of the acts of negligence alleged in the petition. The judge had given in charge the substance of the Code, § 105-202, extraordinary diligence, as stated above; and he then told the jury: "It is the law of this State that a common carrier of passengers for hire is bound to exercise extraordinary care and diligence in the transportation of its passengers. Even slight neglect on the part of its employee, resulting in personal injury to one lawfully upon one of its vehicles, may entail liability on the part of the carrier." This charge stated a correct principle of law, was applicable under the facts of this case, and was not erroneous as contended by the plaintiffs in error. Just before the third repetition on extraordinary care and diligence, the court charged the jury: "I charge you that the defendant, Georgia Stages Inc., was not an insurer of the safe transportation of the husband of the plaintiff while traveling in its motor bus as a passenger, and that he was presumed to have assumed all risks necessarily incident to motor-bus traveling by careful and prudent operation. Unless the defendants were guilty of negligence, the Georgia Stages Inc., would not be liable merely because the deceased was a passenger." The court charged the jury that, if they believed from the evidence that the husband of the plaintiff was killed without fault of the defendants, but by an unavoidable accident arising from causes beyond the defendants' control, they should find for the defendants; and further, if they believed from the evidence that the proximate cause of the death of Young was the negligent operation of another automobile by Willie Crapps, the defendants would not be liable; and then charged that, if the jury should be satisfied from the evidence that the plaintiff had not made out her case "as set up in her petition and sustained by a preponderance of the evidence one or more of the acts of negligence set up in her petition, it would be the duty of the jury to find in favor of the defendants." This ground of the motion is without merit.

3. It is complained in special grounds 6 and 7 that the court erred in charging the jury on the use of the Carlisle Mortality Table and the Annuity Table, introduced in evidence, in that the court failed to charge in connection therewith the admonition suggested by Justice Lumpkin in Florida Central R. Co. v.Burney, 98 Ga. 6 (26 S.E. 730), concerning the use of such tables, that is: "Care, however, must be taken to avoid confusion; and you should be very particular not to use one of them when the other ought to be used. You are also cautioned that you can not advantageously use both in one and the same calculation. While the proper use of these tables separately ought to lead to the same result, using them conjunctively or indiscriminately in the same calculation, or without understanding the real purposes they are respectively intended to subserve, will surely lead to error;" that the failure of the court to charge the above admonition was erroneous and injurious to the plaintiffs in error, not sound as an abstract principle of law, and misleading. In the case here under consideration, the judge followed the short form concerning the use of these tables, as found in Cann's Request to Charge in Civil and Criminal Cases, § 533. If further instruction on this subject was desired, request should have been made. In this case the court instructed the jury: "Certain tables are in evidence before you. One of these is the Carlisle Mortality Table and the other is a table showing the value of annuities. . . These tables are not binding on you, and you are not obliged to use them or either of them." The judge explained to the jury the methods of determining the life expectancy and the value of the life of the deceased, should they find for the plaintiff. Counsel for the plaintiffs in error cite and rely on the case of Central of Ga. Ry. Co. v. Tribble, 25 Ga. App. 775 (105 S.E. 251), in support of their contentions. The charge in that case and the charge in the present case are not analogous, the explanations of the use of the tables are dissimilar, and the assignments of error are not the same, save in the assignment that the tables could not be used conjunctively. The judge fully explained the correct use of the two tables. While he did not specifically charge that the tables should not be used conjunctively, the inference is equally plain that the tables should be used separately, if used at all. It is further complained in special ground 7 that the judge failed in his instructions to the jury — after instructing them, "After you have fixed upon the amount representing the yearly earnings of the deceased and the number of years he would probably have lived, you can by multiplying the one by the other, determine what would have been the gross amount of the earnings of his whole life," — in that he did not refer to the average yearly earnings of the deceased. However, the judge did charge them as to fixing the amount "representing the yearly earnings of the deceased," and had charged them, in estimating damages, that proper allowance and deduction should be made in favor of the defendants for any diminution in earning capacity which would probably have resulted from illness, loss of employment, etc. There is no merit in this amended ground of the motion. SeeBarrett v. Brunswick, 56 Ga. App. 575 (3) (193 S.E. 450).

4. Complaint is made in special ground 8 that the court erred in charging the jury with respect to the pleadings, "That they may be considered evidence to this extent — where an allegation is made in the petition and not denied in the answer, or where something is set up in the petition and admitted in the answer — that may be considered evidence," as being erroneous and not sound as an abstract principle of law. This charge is sound as an abstract principle of law. But the plaintiff in error contends that paragraphs 5, 9, and 13 of the petition were, in the answer of the defendants, neither admitted nor denied for want of sufficient information, and therefore this instruction was error. Paragraph 5 alleged that the deceased left a wife and three children. Paragraph 9 alleged that the highway where the collision occurred was paved and 18 feet wide, and that the bridge where the bus and truck collided was 18 feet wide and 120 feet long. Paragraph 13 alleged the manner in which the deceased was killed. The allegations of these three paragraphs were proved by the evidence; and besides, the defendants in paragraph 17 of their answer alleged substantially the same facts as were alleged in paragraphs 9 and 13 of the petition. In these circumstances, no error is shown by this ground of the motion.

5. In special ground 9 of the amended motion it is contended that the court erred in charging the jury on sudden emergency, as not being adjusted to the pleadings and the evidence. Under the pleadings and all the evidence, this portion of the charge was entirely proper and was not at all unfavorable or harmful to the defendants in the court below. See Southern Ry. Co. v.Jackson, 65 Ga. App. 316 (16 S.E.2d 147).

6. The charge of the court was full and fair and, in all essential matters, free from error, the verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.