Opinion
37311.
DECIDED SEPTEMBER 24, 1958. REHEARING DENIED OCTOBER 16, 1958.
Action for damages. Fulton Civil Court. Before Judge Henson. June 20, 1958.
Troutman, Sams, Schroder Lockerman, Harold C. McKenzie, Jr., for plaintiff in error.
James L. Mayson, contra.
The trial judge erred in denying the motion for new trial.
DECIDED SEPTEMBER 24, 1958 — REHEARING DENIED OCTOBER 16, 1958.
William L. Hardwick filed a suit against George W. Miller, Georgia Power Company, and Silas G. Gurley.
The plaintiff's petition alleged in part that: George W. Miller is a resident of Fulton County, Georgia; Georgia Power Company is a corporation organized and existing under the laws of Georgia and having its principal office and place of doing business in Fulton County, Georgia; Silas G. Gurley resides on Crabtree Lane in the City of Austell, Cobb County, Georgia; and for cause of action shows: that at or about 10:04 p. m. on December 28, 1956, it was raining at and near the intersection of Washington and Richardson Streets in the City of Atlanta, causing the streets to become wet and slippery; that at the time, date and place aforesaid the plaintiff was the owner of a 1951 Nash custom four-door sedan automobile which was parked immediately adjacent to the curb, headed north, on the east side of Washington Street approximately fifty feet south of the southeast corner of the intersection of the said Washington and Richardson Streets, the streets being public streets in the City of Atlanta; that at all times herein stated Silas G. Gurley was the agent, servant, and employee of the defendant Georgia Power Company and was acting for the benefit of his employer and in the scope of his employment; that at the time, date and place Silas G. Gurley was driving a 1956 Ford pickup truck, the property of, and upon the business of his employer, Georgia Power Company, south on Washington Street at a rapid, reckless and immoderate speed without regard for the rights of others and without regard for the aforesaid conditions then existing and without having the vehicle under his immediate control and so drove the vehicle to, through and into the intersection of Washington and Richardson Streets where he collided with a 1954 Chevrolet sedan driven east on Richardson Street by George Miller; that at the time, date and place, George W. Miller was driving a 1954 Chevrolet east on Richardson Street at a rapid, reckless and immoderate speed without regard for the conditions then existing and without due care for the rights of others and without having the vehicle under his immediate control and so drove the vehicle to, through and into the intersection of Washington and Richardson Streets where he collided with the vehicle owned by Georgia Power Company, being driven south on Washington by Silas G. Gurley; that by reason of the impact and collision and immediately thereafter George W. Miller lost control of the vehicle he was driving and the vehicle, by reason of the negligent acts of George W. Miller and Silas G. Gurley, was forced, pushed, shoved and impelled over to the east side of Washington Street against a brick wall with great force and violence and from thence to, through, against and upon the plaintiff's vehicle with such force that the plaintiff's vehicle was forced, pushed, shoved, and impelled backwards into a 1951 Chevrolet automobile parked immediately behind the plaintiff's automobile; that the proximate cause of the accident and the damage suffered by the plaintiff as a result thereof was the concurring acts of negligence of Silas G. Gurley, individually and as the employee, agent, and servant of Georgia Power Company, and of George W. Miller; that as a result of the collision the plaintiff was damaged in the sum of five hundred fifty ($550) dollars, the value of the plaintiff's automobile being six hundred ($600) dollars immediately before the collision and immediately thereafter being fifty ($50) dollars; the plaintiff was without fault in the premises and was in no wise contributorily negligent; that at the time and place there was a valid subsisting ordinance of the City of Atlanta governing the speed of motor vehicles which prohibited speeds in excess of 25 miles per hour, at the place of the collision to wit: Section 30.60 of the City of Atlanta; that at the time and place there was in existence a valid statute of the State of Georgia prohibiting the speed of vehicles over 35 miles per hour at the place of the collision, which place was in a business and residential district, and which prohibits the operation of a vehicle at a speed that is greater than is reasonable and prudent under the conditions then existing and requiring the driver of every vehicle to drive at an appropriately reduced speed when approaching and crossing an intersection and when special hazards exist by reason of weather or highway conditions; the statute has been codified and appears in the current annotated Code of Georgia, § 68-1626; that at the time and place defendant, Silas G. Gurley, was operating a 1956 Ford pickup truck, the property of, and upon the business of his employer, Georgia Power Company, at a speed in excess of the lawful speed of 25 miles per hour, as provided by an ordinance of the City of Atlanta, set forth in paragraph 4-a hereof and in excess of the maximum lawful speed, under optimum conditions, of 35 miles per hour, as provided by § 68-1626 (b) of the 1933 Code of Georgia, as amended, hereinbefore set forth, to wit: at a speed of 50 miles per hour; that defendant, Silas G. Gurley, employee, agent, and servant of the defendant, Georgia Power Company, was negligent in the following particulars: (a) that the defendant drove his vehicle in excess of 25 miles per hour, as set forth in paragraph 4-d of this, plaintiff's amended petition, in violation of the aforesaid valid and existing ordinance of the City of Atlanta, the same being negligence per se; (b) that said defendant drove his vehicle in excess of 35 miles per hour, in violation of § 68-1626 (b) of the Code of Georgia (Ann.), the same being negligence per se; (c) that the defendant failed to reduce the speed of the vehicle he was driving to a speed appropriate to the weather and highway conditions then existing, as set forth in paragraph 1 of this petition, same being in violation of § 68-1626 (c) of the Code of Georgia (Ann.), the same being negligence per se; (d) that the defendant failed to drive at an appropriately reduced speed when approaching and crossing an intersection, the same being a violation of § 68-1626 (c) of the Code of Georgia (Ann.), and negligence per se; (e) that the defendant failed to so control the speed of the vehicle he was driving as to avoid colliding with the vehicle being driven by the defendant George W. Miller, same being a violation of § 68-1626 (a) of the Code of Georgia (Ann.), as hereinbefore set forth, and negligence per se; (f) that the concurring acts of negligence, hereinbefore set forth, on the part of the defendant Silas G. Gurley, the agent, servant, and employee of defendant, Georgia Power Company, and the defendant, George W. Miller, was the proximate cause of the aforesaid accident and resulted in the damage suffered by the plaintiff as set forth in paragraph 8 hereof.
At the conclusion of the evidence the jury returned a verdict against all the defendants. Silas G. Gurley and the Georgia Power Company filed a motion for a new trial which was denied and it is to this ruling the defendants except.
1. Special ground 1 excepts to the judge's ruling which allowed a witness over objection to testify concerning the speed of the truck owned by the Georgia Power Company and driven by Gurley. Under the holding in Shockey v. Baker, 212 Ga. 106 ( 90 S.E.2d 654) this ground is without merit.
2. Special ground 2 assigns as error the trial judge's failure to grant a nonsuit at the conclusion of the plaintiff's evidence. The rule is well stated in Savannah Asphalt Co. v. Blackburn, 96 Ga. App. 113 (2) ( 99 S.E.2d 511): "An assignment of error on the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeds to a verdict in favor of the plaintiff and the defendant's motion for a new trial, to the denial of which exception is taken, includes the ground that the verdict is contrary to the evidence and without evidence to support it. Wakefield v. Lee, 18 Ga. App. 648 ( 90 S.E. 224)."
3. Special ground 3 excepts to the following charge: "Gentlemen, I charge you that in the pleadings, as well as the evidence, there being an admission of the parties, that the plaintiff is entitled to recover some amount. You are not concerned, therefore, with the question of liability, insofar as the plaintiff's right to recover might be concerned. You are concerned, and this is the issue you must resolve by your verdict, you are concerned with the amount of recovery to which the plaintiff might be entitled, and you are concerned with whether or not these defendants are jointly liable, or whether they are severally liable. That is, whether or not Miller is liable along with his codefendants, Georgia Power Company and Gurley, by admission of counsel, Gurley being the servant of Georgia Power Company, and then and there in the discharge of his duties as such, any negligence on the part of Gurley would be imputed to the Georgia Power Company, and if you find that the negligence of Gurley was the proximate cause of the damage, then his principal, Georgia Power Company, would be liable along with him. In other words, if Gurley is found to be liable on account of his negligence, then the Georgia Power Company would also be liable, since the negligence of Gurley is imputable by law to his principal. If you find that Miller was guilty of the acts of negligence charged, and further find that Miller's negligence concurrently with that of Gurley, produced the injury, then Miller would be liable. Otherwise, he would not, and your verdict would be against the Georgia Power Company and Gurley, and a finding in favor of Miller."
The above charge instructed the jury that the parties had made an admission that the plaintiff was entitled to a recovery in some amount. This charge was error because neither the pleadings nor the evidence show that the defendants had admitted liability. While it is true each driver stated the other was negligent, neither admitted he was the cause of the collision. An admission in the law of evidence is a statement by a party of the existence of a fact which is against his interest. 22 C. J. 296, § 323; 31 C. J. S. 1022, Evidence, § 270; Brooks v. Sessoms, 47 Ga. App. 554 ( 171 S.E. 222). This charge was harmful because it instructed the jury that all defendants had admitted liability when in fact none had done so.
While it is true the judge elsewhere charged the jury that it was permissible for them to find against only one of the defendants this did not cure the previous error, because the trial judge failed either to call the jury's attention to the error or instruct them that the incorrect instruction was withdrawn. Georgia Power Co. v. Pharr, 97 Ga. App. 223 (2) ( 102 S.E.2d 658).
4. The defendant insists that it was not proved where the collision took place and therefore under Code § 94-1101 there had been no proof of venue. One of the defendants being a resident of Fulton County this contention is without merit. Georgia Power Co. v. Blum, 80 Ga. App. 618 (1) ( 57 S.E.2d 18).
5. The evidence did not demand a verdict for the defendant and the general grounds of the motion for new trial are without merit.
Judgment reversed. Felton, C. J., and Nichols J., concur.