Opinion
35975.
DECIDED FEBRUARY 7, 1956.
Damages. Before Judge Etheridge. Fulton Civil Court. September 29, 1955.
Marshall, Greene Neely, Burt DeRieux, for plaintiffs in error.
T. J. Long, Nick Long, Jr., Ben Weinberg, Jr., contra.
1. Where, as in the present case, the general grounds of a motion for new trial have been expressly abandoned in the brief of counsel for the plaintiff in error, such grounds will not be considered. Code § 6-1308.
2. The court's charge to the jury must be adjusted to the pleadings and the evidence; and where in an action seeking to recover for the damages to a described trailer and to recover for the loss of the use of the trailer during a period of six weeks during which the trailer was being repaired, there is no evidence from which the jury would be authorized to find that the period during which the trailer was being repaired was a reasonable one, necessary to restore it to its condition prior to the damage to it, it is error requiring the grant of a new trial for the trial court to instruct the jury that "the jury may also consider any loss of use the plaintiff may have suffered by reason of the automobile [trailer] being out of service during the time it was being repaired and the plaintiff would have the right to recover the reasonable value of the rent of the automobile [trailer] for a reasonable length of time during which the automobile [trailer] was being repaired." Webb v. May, 91 Ga. App. 437 ( 85 S.E.2d 641), and citations.
3. As the case must be remanded for a new trial, the remaining grounds of the motion for new trial, in which error is assigned upon the court's charge to the jury, are not considered as the errors are such as are not likely to recur on another trial.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED FEBRUARY 7, 1956.
Marvin Turner brought an action for damages to his trailer against Northern Freight Lines, Incorporated, and its truck driver, E. H. Dale, its agent and employee. The material allegations of his petition as finally amended are substantially as follows. On or about August 8, 1952, the plaintiff was driving his 1951 G.M.C. diesel tractor and trailmobile trailer south on Highway No. 123, one mile north of Clemson, South Carolina, at a speed of approximately 35 miles per hour. At the same time and place, the defendant, Dale, acting within the scope of his employment, was operating Northern Freight Lines' tractor and trailer north on that highway when suddenly, at about 2 a. m., and within the immediate vicinity of the plaintiff's vehicle, the defendant Dale turned the vehicle which he was driving into the path of that of the plaintiff. As the defendant Dale turned the vehicle which he was driving left across the path of that of the plaintiff's vehicle, there was no intersecting highway in the area, and the plaintiff swerved his vehicle to the left in order to avoid a head-on collision. As a result, the right side of the plaintiff's vehicle collided with the right side of the Northern Freight Lines' vehicle. The vehicle of the Northern Freight Lines was facing in a westerly direction at the time of the impact and the collision caused vast damage to the plaintiff's trailer. Immediately before the collision the plaintiff's trailer had a reasonable market value of $6,000 and immediately thereafter before repairs were made it had a reasonable market value of $3,000. The necessary time required to make the proper repairs to the trailer amounted to five weeks and the reasonable hire of a similar trailer is $500 per week. At the time and place in question the defendant Dale was traveling at a speed of approximately 45 miles per hour. As it was dark at that hour, both the plaintiff and the defendant Dale had the headlights of their vehicles burning. At the time and place in question there were in full force and effect the following code sections of the code of laws of South Carolina:
Code § 46-383: "Passing vehicles proceeding in opposite directions. Drivers of vehicles proceeding in opposite directions shall pass each other to the right and upon roadways having width for not more than one line of traffic in each direction, each driver shall give the other at least one-half of the main traveled portion of the roadway as nearly as possible."
Code § 46-381: "Drivers to drive on right side; exceptions. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway except as follows: (1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement. (2) When the right half of a roadway is closed to traffic while under construction or repair. (3) Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or (4) Upon a roadway designated and signposted for one-way traffic."
Code § 46-390: "Driving on roadways laned for traffic. Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules, in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. . ."
The defendant violated these statutes and the violations constituted negligence per se and are the direct and proximate cause of the plaintiff's injuries and damages.
The defendants were negligent in the following particulars: (a) In failing to grant the right of way to the plaintiff. (b) In turning across the plaintiff's path of approach. (c) In failing to keep a lookout ahead to discover any approaching traffic before turning to the driver's left. (d) In driving Northern Freight Lines' vehicle into that of the plaintiff. (e) In failing to exhibit any signal indicating a left turn.
The above acts of negligence constitute the proximate cause of the plaintiff's injuries and damages.
The defendant Dale filed his answer denying the material allegations of the plaintiff's petition and answered further that the sole proximate cause of the damage claimed by the plaintiff was the plaintiff's own negligence in that the plaintiff was not exercising ordinary care for the safety of his vehicle at the time of the alleged collision; and that even if the defendant Dale was negligent in the manner alleged in the plaintiff's petition, the plaintiff's own negligence was greater than his and the plaintiff could have avoided the consequences of the defendant Dale's negligence if he had been in the exercise of ordinary care and diligence.
The defendant Northern Freight Lines filed its answer denying the material allegations of the petition and answered further that the sole proximate cause of the damage claimed by the plaintiff was the plaintiff's own negligence; that the plaintiff's negligence contributed proximately to the damage claimed and the plaintiff was not exercising ordinary care for the safety of his own vehicle at the time of the collision. By an amendment to its answer, the defendant Northern Freight Lines added the following allegations: The defendant pleads as a bar to the plaintiff's action the contributory negligence of the plaintiff who was negligent in such a degree and in such a manner as to be the contributing cause of the collision. The following statutes of the State of South Carolina were in force and effect at the time of the collision: Code § 46-361: "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance or on entering the highway in compliance with legal requirements, and the duty of all persons to use due care." Code § 46-362: "Where no special hazard exists that requires lower speed for compliance with § 46-361, the speed of any vehicle not in excess of the limits specified in this section, or established as herein authorized, shall be lawful, such limits established in this section being: (1) Twenty-five miles per hour in any business district. (2) Thirty-five miles per hour in any residential district; and (3) Fifty miles per hour under other conditions.
"Any speed in excess of such limits or limits established as herein otherwise authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful." Code § 46-363: "The driver of every vehicle shall, consistent with the requirements of § 46-361, drive at an appropriate reduced speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow and winding roadway, and when any special hazard exists with respect to pedestrians or other traffic, by reason of weather or highway conditions."
The case law of South Carolina provides that contributory negligence of a plaintiff is a complete bar to the plaintiff's action regardless of the degree or extent of the negligence, provided it contributes to the injury as a proximate cause thereof, without which the occurrence upon which suit is brought would not have occurred.
By way of cross-action Northern Freight Lines alleged that its trailer, referred to in the plaintiff's petition, was severely damaged as a direct result of the collision between the two vehicles. Just prior to the collision its trailer was of a fair market value of $1,200 and just after the collision, it was of a fair market value of $500. This depreciation in value of $700 was a direct result of the collision between the two vehicles involved in this case. While making necessary and reasonable repairs thereto, the defendant Northern Freight Lines' trailer was out of service for approximately two weeks, and the defendant is entitled to a reasonable value for the loss of its trailer, which value is alleged to be $75 per week. Northern Freight Lines' damages in the amount of $850 were due solely and proximately to the following acts of negligence on the part of the plaintiff: (a) In not driving the motor vehicle which he was operating at an appropriately reduced speed when approaching and traveling over the crest of a hill which was negligence per se. (b) In not operating the motor vehicle which he was operating at an appropriately reduced speed while rounding a curve in the highway which was negligence per se. (c) In not operating the motor vehicle which he was driving at an appropriate speed in view of the weather conditions and the time of day then and there prevailing, and this was negligence per se. (d) In operating the vehicle which he was driving at a speed which was greater than reasonable and prudent under the circumstances then and there existing, and this was negligence per se. (e) In not having the vehicle which he was operating equipped with a good and efficient braking system. (f) In crashing into and upon Northern Freight Lines' vehicle.
On the trial of the case, counsel for the parties stipulated that the statutes of South Carolina pleaded in the petition and in the answer of the Northern Freight Lines would be accepted as valid and in full force and effect at the time of the collision without further proof. It was also stipulated that any applicable case law of South Carolina could be read to the court from the Southeastern Reporter instead of the official volumes of the South Carolina reports.
The jury returned a verdict in the amount of $3,250 in favor of the plaintiff. The joint motion for a new trial of the defendants, based on the usual general grounds and four special grounds, was overruled and they assign error here on that judgment.