Opinion
35476.
DECIDED APRIL 6, 1955.
Damages. Before Judge Houston, Barrow Superior Court. September 25, 1954.
Alfred D. Quillian, Powell, Goldstein, Frazer Murphy, E. E. Dorsey, James Hill, for plaintiff in error.
W. L. Nix, E. W. White, contra.
1. The statement that the defendant says that the injury complained of was proximately caused by the plaintiff's mother, who was in sole control of her minor daughter, and that the mother, by the exercise of ordinary care, could have avoided the consequences of the alleged negligence of the defendant, was made while the trial court was submitting the contentions of the parties as made by their pleadings, and in such circumstances it was the duty of counsel to aid the trial court in determining what issues should be submitted to the jury.
2. The trial court did not err in charging the jury that the operator of a motor vehicle shall have the same under immediate control in approaching any person walking in the roadway or traveling any public street or highway.
3. After having charged with reference to traffic regulations set forth in Code § 68-301 et seq., in so far as they were applicable to the pleadings and evidence, the trial court did not err in charging the jury that a violation of any one or more of the aforesaid traffic regulations would constitute what is called negligence per se.
4. The charge that if the jury should believe that the plaintiff suffered injury as alleged and if the same was due to the negligence of the defendant as alleged, and that the plaintiff could not have prevented the same by the exercise of that care on her part as to which the court had instructed the jury, she would be entitled to recover on account of the damage sustained, was properly adjusted to the pleadings and the evidence.
5. The evidence, though conflicting on the question of whether the alleged negligence of the defendant was the sole and proximate cause of the injury, was sufficient to authorize the verdict for the plaintiff.
DECIDED APRIL 6, 1955.
Barbara Ann Crowe, by next friend, sued C. A. Rutledge in Barrow Superior Court for damages of $50,000 for personal injuries alleged to have resulted from the negligence of the defendant: (a) in operating his automobile upon the highway at a rate of speed greater than was reasonable and safe, having due regard for the width, grade, character, traffic, and common use of the highway, so as to endanger life, or limb or property in any respect whatsoever, and such negligence was negligence per se; (b) in driving the automobile at and over the intersecting road at a rate of speed in violation of law as above set forth, and such acts were negligence per se; (c) in not reducing his speed as he reached the intersection so as not to injure any person appearing upon the highway; (d) in not reducing his speed and stopping his car when the car traveling ahead of him stopped as above set forth; (e) in not bringing his automobile to a stop before striking the plaintiff as aforesaid; (f) in striking the plaintiff and injuring and damaging her as aforesaid; (g) in driving his automobile over and upon the intersection roads without reducing his speed, and in failing to give warning of his approach to the plaintiff by sounding any horn, gong, or other signaling device; (h) in driving the automobile over and upon the highway when his vision was dimmed by reason of the facts herein alleged, so that he could not and did not stop before striking the plaintiff. By amendment it was alleged; that Shadburn Ferry Road, as it approached the home of the plaintiff's mother from an easterly direction, consisted of a series of hills, valleys, and curves, and on the north bank of the road about 30 feet from the intersection, a large cedar tree was standing; that, in driving down the hill while approaching the cedar tree at a rate of speed of 50 miles per hour or more, the defendant did not reduce his speed or sound a horn, and he continued to drive at the rate of speed of 50 miles per hour as he approached the intersecting road from the north on which the plaintiff was walking, although at the time his vision was dimmed and obscured by the thick cedar tree, and he struck the plaintiff without having due regard for the requirement that he should not operate his automobile upon the highway at a rate of speed greater than was reasonable and safe. The plaintiff prayed for process, and that she have a judgment against the defendant for $50,000.
The defendant filed general and special demurrers to the petition as amended, and also filed an answer. The trial court sustained certain of the defendant's special demurrers to the petition and overruled his general and certain other special demurrers thereto, and sustained certain of the plaintiff's special demurrers to the defendant's answer and overruled certain other demurrers of the plaintiff thereto. There was no exception to the rulings upon the aforesaid demurrers.
On the trial Mrs. Lois Crowe, the plaintiff's mother, testified in part: Barbara Ann, who was between 11 and 12 years of age, lived with the witness on the south side of Shadburn Ferry Road when she was injured on May 6, 1950. On the day the accident occurred, the witness went to Buford to get groceries and returned about 11 o'clock in the morning. Eric Bagby stopped his car and let the witness out just a few feet from her porch, not much more than five or six steps. Bagby always drove around 50 or 55 miles an hour, and he did so that morning. The road had been graded and was awfully dusty. The witness saw her daughter coming down the road from the north towards her home. She was not too close to Shadburn Ferry Road and she tried to cross it. She continued to come towards the road after the witness first saw her. When the witness got out of the car, she went straight to the porch with the groceries. She was nearly at her porch steps when she saw the plaintiff and saw a car going along even with her house. She had not seen the car before that time. It came up quickly after she got to her doorsteps. When she saw the car, she screamed "Barbara," and the next thing she saw was the car hit her. There was a cedar tree on the opposite side of the road nearer the witness's house than the intersection where the accident occurred. In grading the road they filled up the dirt and made a big bank towards the cedar tree, which was bushy with lots of limbs. When the plaintiff came down out of Mrs. Richardson's yard into the road where the car hit her, there was nothing to keep a person from seeing her except the dust and the cedar tree. The Richardson house is up on a little roadside bank, but the view was not obscured by anything unless it was dust and the cedar tree. The driver of the automobile did not do anything to reduce his speed or stop the car to prevent hitting the plaintiff. It was all in a flash. The driver did not blow any horn or make any other kind of signal.
Barbara Ann Crowe, the plaintiff, testified: She saw her mother when she returned in the car with Eric Bagby. He stopped to let her out. The plaintiff just saw her mother coming and took off from the Richardson's porch down the hill and out of the yard. It was about 75 or 100 feet from the road where she got hit to the porch. When the plaintiff saw her mother coming, she ran down the steps to get off the porch and went out the side walk and then hit the little road and down to the main road. She was running moderately fast, just a jog like. There was dust and a cedar tree to obstruct a person's view, but she was not looking for cars. It did not occur to her to look both ways to see if any cars were coming or not. She did not hear any kind of a sound when she got down near the road. The defendant did not sound a horn on his automobile or give any other signal. The next thing she remembered was when she started to fall and saw the name "Doge" on the front of the car.
Mrs. Allene King testified for the defendant: She was on the front porch of the Richardson house across the road from the Crowe house when the accident occurred. As you go out of Buford on the Shadburn Ferry Road, Mrs. Crowe's house is on the left and the Richardson house is on the right up a hill or on an incline from Shadburn Ferry Road. A dirt road ran off to the right of Shadburn Ferry Road in front of the Richardson house, the front porch of which was further away from Buford in relation of Mrs. Crowe's house. The witness's sister, Nellie, said, "Barbara, there is your mother," and plaintiff ran down the driveway into Shadburn Ferry Road, and was hit by the defendant's car. When the witness saw the defendant's car, it was not more than 50 feet from where it collided with the plaintiff. It was right close on the plaintiff and was not going fast. A cedar tree blocked the vision of a car going away from Buford in the direction the defendant was going. The witness did not recall seeing any dust and could see clearly from the Richardson porch down to the road. The defendant's car stopped immediately after it came in contact with the plaintiff, who was running down the dirt road into the Shadburn Ferry Road, and she did not slow down as she approached Shadburn Ferry Road nor did she stop and look. As she ran down Shadburn Ferry Road, the cedar tree and the shrubs would have obscured the vision of traffic coming from the direction in which the defendant was coming. It was a blind corner, but the plaintiff did not stop. The defendant's car came in contact with the plaintiff about the middle of the front of the car. The defendant was driving about 15 miles an hour the first time the witness saw him. He could have stopped if he had seen the plaintiff, but he did not have an opportunity to see her. It was just a small way from the cedar tree to the intersection, and the defendant's car and the plaintiff met at the same time. The plaintiff ran in front of the defendant's automobile and the front of the car hit her. The witness hollered at the plaintiff as she ran down the hill. The car stopped right at the corner where it hit the plaintiff.
Nellie Richardson testified: A dirt road runs up the hill in front of the Richardson house. She saw Mrs. Crowe get out of the Bagby car before she saw the defendant's car. The plaintiff was down at the tree next to the dirt road in the Richardson yard. The witness told the plaintiff that her mother had come, and she ran down the road in front of the witness's house and into the defendant's car when she got in the Shadburn Ferry Road. When the defendant's car came in contact with the plaintiff, it was going 15 to 20 miles an hour, and it stopped at the point where it hit the plaintiff. The Bagby car had driven off when the defendant's car came up. Mrs. King saw the defendant's car coming and screamed at the plaintiff for her to stop when she started in the road.
Lillian Richardson testified: There is a dirt road that runs off to the right as you go out from Buford up in front of the Richardson house. Not too many cars went up and down that road. Mrs. Crowe got out of a car that stopped in front of her house, and the plaintiff began running down the dirt road in front of the Richardson house towards Mrs. Crowe's house. She did not stop when she reached Shadburn Ferry Road or before she was hit. A cedar tree at the intersection of the dirt road blocked the plaintiff's view and also blocked the view of a person driving his car out from Buford. When the plaintiff reached the point where her vision was blocked, she did not stop to see if anything was coming. She ran out in the road. The front of the defendant's car came in contact with the plaintiff, and he stopped right there. The witness did not see the defendant's automobile until just as it hit the plaintiff. Shadburn Ferry Road was not dusty at all that morning. The defendant was going 15 or 20 miles an hour just before he struck the plaintiff. The Richardsons traversed the dirt road that turns off Shadburn Ferry Road and goes over to a subdivision in Buford. It is a public road.
Herbert Wallace testified: The hollering and screaming attracted his attention, and he turned around just in time to see the defendant's car hit the plaintiff. The defendant's car was not moving fast.
Norman Skinner, who was riding with the defendant, testified: The defendant was going about 20 miles an hour when the plaintiff came out and ran in front of him. There was a big cedar tree on the right side of the road and it blocked the vision of the dirt road leading off to the right where the plaintiff came out. It was dusty, but you could still see out there. The witness first saw the plaintiff just as the car struck her, just a foot or something like that from her. The defendant made a medium stop just as soon as he struck her, he traveled may be four feet. He put on the brakes pretty fast.
Clifford Rutledge, the defendant, testified: He was not looking at the speedometer, but could not possibly have been running over 20 miles an hour. It was not extremely dusty. The cedar tree was exactly in the intersection of Shadburn Ferry Road and the dirt road that ran off to the right, and it obstructed his vision of the road as he went out from Buford. He first saw the plaintiff just momentarily as he hit her and did not apply his brakes until he saw her. When he first saw her, she was right in front of him. After his car hit her he traveled a very short distance, not further than the length of the car. He applied his brakes with all he had and the car came to a stop rapidly. Twenty miles an hour is a reasonable rate of speed for that road. He did not see Mr. Bagby's car stop. He came from Buford behind him. There was not enough dust in the air to dim his view. The first thing he knew the little girl came out from behind the cedar tree in just a dash. Before he got there you could just see at the intersection. You might see just up above there, at the back of the tree, if you had been looking off in there. Immediately following the accident, he carried the plaintiff to the hospital.
Oscar L. Dollar testified that the road from Buford to his home, which included the intersection in question, was a thickly populated section of the county and there were a number of houses in which children lived.
A deposition of Dr. J. H. Kite showed that the plaintiff was permanently injured as a result of the accident, and the nature thereof.
The evidence was conflicting concerning the extent that dust affected the vision of one driving on the portion of the road in question on the day of the accident.
The jury returned a verdict for the plaintiff of $10,000. The defendant's motion for new trial, which was amended by adding four special grounds complaining of the court's charge, was denied, and the exception is to that judgment.
1. The 4th special ground of the motion for new new trial complains of the charge: "Defendant says further that at all times mentioned in the plaintiff's petition the plaintiff, Barbara Ann Crowe, was a minor in the sole custody and control of her mother and that her mother was then and there exercising sole parental control and was responsible for the conduct and safety of the plaintiff, Barbara Ann Crowe. He says further that all of the alleged injuries and damages complained of in the plaintiff's petition was directly and proximately caused by the plaintiff's mother, Mrs. Lois Crowe, and by the negligent acts of the plaintiff's mother, and further that plaintiff's mother could have by the exercise of ordinary care avoided the consequences to her minor child of the alleged negligence, if any, of the defendant. He further says that the negligence of the plaintiff's mother in so far as it related to the custody, care and control of the plaintiff was equal to or greater than that of the defendant, if any." The criticism is that these contentions of the defendant had been stricken on demurrer, and the charge was therefore misleading to the jury in that it led them to believe the defendant could introduce proof to substantiate his contentions.
In giving the charge, the trial court was stating the contentions of the defendant as he understood them, and it is the duty of counsel to aid the court in determining what issues should be submitted to the jury. Anderson v. State, 196 Ga. 468, 471 ( 26 S.E.2d 755); Deaton v. Swanson, 196 Ga. 833 (5) ( 28 S.E.2d 126); Edmiston v. Whitney Land Co., 198 Ga. 546, 549 ( 32 S.E.2d 259); Palmer v. Hinson, 201 Ga. 654, 657 ( 40 S.E.2d 526). The above contentions were set forth in paragraphs 20 and 21 of the defendant's answer. Paragraph 20, wherein it was averred that the plaintiff was a minor and that her mother was responsible for her safety, was stricken on demurrer. However, the demurrer to the remaining averments as set forth in paragraph 21 was sustained only in so far as it related to the acts of negligence of the plaintiff's mother. Paragraph 22, wherein the defendant averred that the joint negligence of the plaintiff and her mother was the sole and proximate cause of the accident, was not stricken on demurrer. In other portions of the charge the judge told the jury: that he had stated substantially what the plaintiff and the defendant set out in their pleadings; that what the court had stated was not evidence, and was not to be considered as evidence; that it was simply the statements of the contentions of the parties as set out in their pleadings; and that the jury could take and examine the pleadings when they retired.
Furthermore, the charge complained of was not erroneous where the defendant introduced evidence to the effect that, on the occasion of the injury, the mother left the plaintiff and other small children at home unattended by any adult, and without any supervision of an older person.
2. The 5th special ground complains of the charge: "In approaching any person walking in the roadway or traveling any public street or highway the operator of a motor vehicle shall at all times have the same under immediate control. It is the duty of an operator of a motor vehicle to have the same under immediate control both when he is conscious of the presence of a pedestrian on the highway and also when he should by the exercise of ordinary care have discovered the presence of such pedestrian."
In giving the above instruction, the trial court paraphrased Code § 68-304. The State highways are provided for the use of pedestrians as well as for motor vehicles, and drivers of motor vehicles are under the duty to exercise ordinary care in the operation of such vehicles on the highways, to avoid injury to pedestrians thereon, in like manner as they are under such duty to other lawful users of the highway by motor vehicles. Sprayberry v. Snow, 190 Ga. 723, 728 ( 10 S.E.2d 179).
The charge complained of was proper in view of the allegation in the petition that the defendant was negligent in not bringing his automobile to a stop before striking the petitioner.
3. The 6th special ground complains of the charge: "These traffic regulations which I have just given you as the law of this State applicable to this case, that is applicable to the pleadings and evidence, are put down as directions under law and a violation of any one or more of them would constitute what is called negligence per se, that is negligence as a matter of law without further proof of negligence than a violation of such traffic law or regulation."
These instructions were given after the trial court had charged with reference to various traffic regulations set forth in Code § 68-301 et seq., in so far as they were applicable to the pleadings and evidence. The charge complained of was not erroneous because, as contended, it was tantamount to an instruction that all of the traffic regulations were applicable to the pleadings and the evidence, when this was an issue for the jury.
4. The 7th special ground complains of the charge: "If the jury should believe that the plaintiff, Barbara Ann Crowe, suffered injury as alleged and if the same was due to the negligence of the defendant, C. A. Rutledge, as alleged, and that plaintiff, Barbara Ann Crowe, could not have prevented the same by the exercise of that care on her part which I have just instructed you about, she would be entitled to recover on account of the damage sustained."
The above instruction was properly adjusted to the pleadings and the evidence in the present case. The charge as a whole was full and fair and adequately covered the contentions of the parties and the principles of law applicable thereto.
5. On the date of the injury, the plaintiff was between 11 and 12 years of age, and the trial court charged that, "if the jury should find that the degree of negligence attributable to the plaintiff was less than that attributable to the defendant, the plaintiff would be entitled to recover, but not the full amount of her damages, those damages when ascertained should be reduced by the jury in proportion to the degree of negligence attributable to the plaintiff."
There is no contention that the plaintiff was not permanently injured. However, it is urgently insisted that her injury was not caused by any negligence upon the part of the defendant. The evidence, though conflicting on the question of whether or not the alleged negligence of the defendant was the sole and proximate cause of the injury, was sufficient to authorize the verdict for the plaintiff, and the trial court did not err for any reason assigned in denying the defendant's motion for new trial as amended. Jackson v. Criner, 69 Ga. App. 18, 24 ( 24 S.E.2d 603); Christian v. Smith, 78 Ga. App. 603, 606 ( 51 S.E.2d 857).
Judgment affirmed. Gardner, P. J., concurs. Felton, C. J., concurs in the judgment.