Bell v. Lewis , 74 Ga. App. 26 ( 1946 )

1. Where there is uncontradicted evidence that the plaintiff, a minor, had been manumitted prior to the accident, and he brings suit through his father as next friend praying damages for personal injuries, hospital and physician expenses, and diminution of earning capacity, it will be conclusively presumed that the father has consented and acquiesced in the manumission of the plaintiff from the date of the injuries to the date of the plaintiff's majority, and it was not error for the court to charge upon the recovery of the reasonable value of hospital and physician expenses; nor was it error for the court to fail to charge, under the facts of this case, that before the plaintiff could recover for personal injuries and diminution of earning capacity he must first show that he had been manumitted for the period from the date of the injuries to the date of his majority.

2. Where the evidence is conflicting, the questions of negligence, contributory negligence, and proximate cause are for the jury, and where it finds that the defendant was negligent in blinding the plaintiff by failure to dim his lights, and that such negligence was the proximate cause of the plaintiff's driving to the left of the center line of the highway and colliding with the defendant's truck, we cannot say as a matter of law that this finding was unauthorized.

3. While under some circumstances it might be found to be negligence as a matter of fact for four persons to occupy the front seat of an automobile being driven on the highways, in the absence of statutory prohibition it is not negligence per se; and where there is some evidence to authorize the finding of the jury that such occupancy was not negligence, under the facts of this case, and in no way contributed to the accident, we cannot say as a matter of law that such finding was unauthorized.

DECIDED JUNE 13, 1946. Oscar Lewis, a minor, by his next friend, Walter Lewis, brought suit in the Superior Court of Seminole County against Ben Bell to recover damages for personal injuries resulting from a collision between the automobile of the plaintiff and the truck of the defendant. The plaintiff alleged substantially the following: On the night of February 3, 1945, a collision occurred between the plaintiff's Model A Ford roadster, driven by him, and the defendant's truck, driven by Forrest Hand, agent of the defendant; the collision occurred within the corporate limits of the City of Donalsonville, on State Highway No. 38; the plaintiff was without fault, and the defendant and his agent were negligent in that the driver of the truck failed to dim his lights, allowing the bright lights to remain on, thereby blinding the plaintiff who was meeting the truck on the highway; the truck was being operated at the reckless and excessive rate of from fifty to fifty-five miles per hour, and the driver did not have it under immediate control; the plaintiff sustained the injuries enumerated, which will totally incapacitate him for a year, and thereafter his earning capacity will be greatly reduced; and the plaintiff has incurred hospital and physician expenses of approximately $500, and claims damages in the total sum of $15,000.

The defendant filed his answer of general denial, and answered that the plaintiff was driving the automobile while under the influence of intoxicating beverages; that the front seat of the plaintiff's automobile was occupied by the plaintiff and three other persons, making a total of four; and that the plaintiff was driving on the wrong side of the road, all of which constituted negligence on the part of the plaintiff such as to preclude any recovery by him. The defendant filed no demurrers. On the trial a verdict and judgment were entered for the plaintiff in the amount of $3000.

The defendant filed his motion for new trial on the general grounds and amended the same to include the following special grounds: (1) Because the verdict is contrary to law for the reason that the plaintiff, a minor, sued for personal injuries without first showing that he had been manumitted and that his earnings from the date of the injury to the date of his reaching his majority would have belonged to him. (2) The plaintiff, a minor, sued for doctor's bills and hospital services, and some part of this amount was evidently incorporated in the verdict of the jury, when as a matter of law, the plaintiff being a minor, the legal obligation to pay for the medical and hospital expenses was upon the father. (3) Because the court erred in charging on the question of recovery of medical and hospital expenses. (4) Because the court erred in failing to charge, without request, that before the plaintiff could recover for personal injuries for the period from the date of the injuries to the date of his majority, it was incumbent upon him to show that he had been manumitted. (5) Because the court erred in failing to charge, without request, that before the plaintiff could recover for personal injuries and diminution of his earning capacity, he would have to show that the full earnings from the date of the injuries to the date of his majority would belong to him and not to his father. (6) The verdict is contrary to law because the undisputed evidence showed that the plaintiff was driving his automobile two feet and two inches to the left of the center line of the highway when the collision occurred, and the injuries sustained were due to the plaintiff's own negligence. (7) The verdict is contrary to law for the reason that the evidence disclosed without dispute that at the time of the collision there were four persons occupying the front seat of the plaintiff's automobile, which was contrary to the rules of safety for driving an automobile and was as a matter of law negligence per se, and therefore the injuries were the result of the plaintiff's own negligence.

The court overruled the defendant's motion for new trial as amended and he excepts. 1. Grounds 1, 2, 3, 4, and 5 of the motion for new trial as amended are merely variations of the question of the manumission of the plaintiff, a minor, and will be considered here together. The evidence of the plaintiff's manumission up to the time of the accident was uncontradicted. The father of the plaintiff swore positively and without qualification that the plaintiff had been manumitted since the age of seventeen, and that since that time the plaintiff had been allowed to work at employments of his own choosing and to retain the proceeds of his labors for his own use. This was corroborated by several witnesses, and at no place in the record do we find this disputed by sworn testimony. Under this state of the case the fact of the plaintiff's manumission was uncontrovertibly established up to the time of the accident. The defendant contends, however, that this established fact does not take care of the period from the date of the injuries to the plaintiff's majority. It will be remembered that no demurrers were filed to the plaintiff's petition wherein he sues by next friend. He was proceeding in his own right to collect the items of damage which the defendant now says on appeal that he cannot have, as they belong to the plaintiff's father. The father is the prochein ami in this case, and under this state of the record the father will be conclusively presumed to have consented to and acquiesced in the plaintiff's receiving these items of damages, and this obviated the necessity of further proof of the manumission of the plaintiff, under the facts of this case.Royal v. Grant, 5 Ga. App. 643 (63 S.E. 708); Vale RoyalMfg. Co. v. Bradley, 8 Ga. App. 483 (70 S.E. 36). There was no error, therefore, in the court's charging upon the reasonable value of hospital and physician expenses, nor was it error to fail to charge that, before the plaintiff might recover for personal injuries and diminution of earning capacity, it must first be shown that these items belonged to him and not to his father, due to the fact of manumission from the date of the injuries to the date of the plaintiff's majority.

2. It is contended in special ground 6 that the plaintiff was driving his automobile two feet and two inches to the left of the center line of the highway at the time of the collision, which was admitted by the plaintiff on the trial and uncontradicted, and that this was negligence and the proximate cause of the collision resulting in the plaintiff's injuries. The plaintiff, while admitting that he was two feet two inches to the left of the center line of the highway, contends that he was so blinded by the extremely bright lights of the defendant's truck, and the driver did not at any time dim his lights, that he was unable to see, and though he immediately retarded the speed of his automobile he was so blinded that he did not perceive that he had turned his machine to the left instead of to the right, and that the defendant's negligence in failing to dim his lights and in so blinding him that he could not see where he was going was the proximate cause of the accident. To this contention of the plaintiff the defendant rejoined that, if the plaintiff was blinded, it was incumbent upon him to stop his car or pull over to the side of the highway until he regained his sight. The plaintiff testified: "After I turned [into the highway] I went about a hundred and fifty yards and I saw a truck coming. The truck had bright lights and never dimmed them. He never would give me no dims. They blinded me where I couldn't see. I was doing my best to stop. It just blinded me so I couldn't see a wink. I had been blinded for seventy-five or eighty yards before the truck and my car collided. . . If I was over the center line, he blinded me and I couldn't see where I was going. . . The last time I could see I was on my side of the road." The other occupants of the car likewise testified that they too were blinded by the lights from the defendant's truck, and testified that the plaintiff's car had come almost to a standstill, or at most was traveling at about five miles per hour when the collision occurred. The defendant's driver testified that he did not have any bright lights on the truck, as the bright lights were out of order, and that he was not speeding at the time of the accident. The jury resolved the question of negligence in favor of the plaintiff, and under the facts as they appear from the record, we can not say as a matter of law that the plaintiff was negligent and brought about his own injuries or that the evidence does not support the verdict.

3. In special ground 7, the defendant contends that four persons occupying the front seat of an automobile is contrary to the rules of safety for driving an automobile and was as a matter of law negligence per se, and therefore the injuries sustained by the plaintiff were the result of his own negligence. This contention is without merit. There is no statute in Georgia, insofar as our investigation shows, which prohibits as many as four persons from occupying the front seat of an automobile while it is being driven over the highways of this State; and in the absence of such a statute, it can not be said to be negligence per se to so occupy the front seat of an automobile. While under some circumstances the jury might consider it negligence for four persons to occupy the front seat of an automobile driven on the highways, the evidence shows in this case, without contradiction, that the presence of the four persons on the front seat of the plaintiff's car did not in any way interfere with his driving or contribute in any way to the collision. The jury likewise resolved this question of negligence in favor of the plaintiff, and there was sufficient evidence to authorize this finding.

For the foregoing reasons the court did not err in refusing a new trial for any reason assigned.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.