Atlanta Metallic Casket Co. v. Hollingsworth

• Decision Date: 12 July 1961
• Docket Number: No. 1,No. 38817,38817,1
• Citation: 104 Ga.App. 154,121 S.E.2d 388
• Parties: ATLANTA METALLIC CASKET COMPANY et al. v. T. V. HOLLINGSWORTH
• Court: Georgia Court of Appeals

Page 388

121 S.E.2d 388

104 Ga.App. 154

ATLANTA METALLIC CASKET COMPANY et al. v. T. V. HOLLINGSWORTH.

No. 38817.

Court of Appeals of Georgia, Division No. 1.

July 12, 1961.

Syllabus by the Court

1. No error was committed in charging the provisions of Code Ann. § 68-1626 requiring that every driver shall drive at an appropriate reduced speed when approaching an intersection, under the pleadings and evidence in the case.

2. Where the court gives in charge an entire Code section, a part of which is inapplicable to the issues, this is not a ground for reversal unless it appears that the inapplicable portion was calculated to mislead or erroneously affect the jury in its rendition of the verdict.

3. It was not error or prejudicial to the defendant to charge the provisions of Code Ann. § 68-1626(b) prescribing a speed limit of 35 miles per hour in a business district, and to charge the statutory definition of a business district, though there was no proof of the official establishment at the place in question of a speed limit below the general statutory limit of 60 miles per hour, when a State patrolman testified that it was a posted 30 mile per hour speed zone, and the defendant himself testified that he knew the speed limit was posted as 35 miles per hour.

4. When there is undisputed evidence of a fact, it is not error for the court so to instruct the jury.

5. It is not error to charge Code Ann. § 68-1641(a) prohibiting following another vehicle too closely, where the evidence authorizes a finding that the defendant is following too closely.

6. To authorize the court to charge on the issue of whether brakes are capable of performing as required by Code Ann. § 68-1715(b), there must be evidence that the brakes have been tested and as to whether or not they meet the statutory requirements.

7. It was not error to charge Code Ann. § 68-1715(c), requiring that brakes shall be both maintained in good working order and be adjusted equally on opposite sides of the vehicle, when there was evidence authorizing a finding that the brakes were not in good working order but no evidence respecting the equal adjustment of the brakes. Though a portion of the section was inapplicable to the evidence, the charge of that portion was not calculated to mislead or erroneously affect the jury in its rendition of the verdict.

8. Construed in connection with the entire charge of the court and the evidence, the charge of the law placing the burden upon a defendant, when there is shown a violation of a statutory requirement as to brakes, to prove such violation was not due to his neglect, and in connection therewith the charge that an owner or driver has the duty to inspect and discover hazardous defects, was not error.

9. The charge to the effect that, when improper functioning of a motor vehicle violates a statute, this constitutes negligence per se, and the defendant must show that the operation of the vehicle was not a violation because unintentional and not the result of his failure to exercise ordinary care, when considered in context with the rest of the court's charge, was not calculated to mislead the jury; it was supported by the evidence and was not error.

10. The charge that whether the defendant 'was confronted with a sudden emergency, and if so, exercised the proper degree of care, that is, ordinary care, in the situation are questions for the jury to determine,' was not an incorrect statement of the law.

11. It was not error to refuse a written request to charge, set out in the opinion, on the duty of care in a sudden emergency, which contained an imperfect and incomplete statement of the law.

12. The evidence as a whole supporting the verdict, it was not error to overrule the general grounds of the motion for new trial.

Plaintiff in the trial court (defendant in error on appeal) brought an action for damages for personal injuries, the allegations of which, so far as they pertain to the grounds of this appeal, will be set out below. The defendants in the trial court (plaintiffs in error on appeal) were the owner of a tractor-truck and its driver employed by the owner. Plaintiff alleged that while he was sitting beneath a shade tree off Highway No. 78, near its intersection with Spring Street in the municipality of Lithia Springs, the defendant employee, driving on the highway, suddenly lost control of the truck and it skidded off the highway and into the plaintiff, running over his feet, and inflicting serious injuries; that defendant was following a line of traffic within ten feet of the car immediately in front of him, at 70 miles per hour, and that he had not appropriately reduced his speed as he approached the car ahead of him, but suddenly slammed on his brakes and swerved and skidded as aforesaid. The plaintiff alleged that his injuries were caused by the following acts and omissions of negligence of the defendant: (a). failure to keep the tractor under his immediate and direct control; (b). failure to keep a sharp and vigilant lookout ahead of him; (c). failure to avoid striking plaintiff; (d). failure to check, slow down or reduce the speed of the tractor as he approached the intersection of Spring Street and Lithia Springs with Highway #78, in violation of state law (Code § 68-1626); (e). driving said tractor at an unlawful and reckless rate of speed, to wit around 70 miles an hour, as he came to this intersection, behind said line of heavy traffic, same being, with regard to the existing and potential hazards then existing, all clearly apparent to him, in violation of state law (Code § 68-1626); (f). failure to have the speed of said tractor so controlled and to drive at such rate as was necessary to avoid losing control thereof and running off said highway to his right and upon plaintiff's property, thereby striking plaintiff, in violation of state law (Code § 68-1626(a)); (g). following too closely behind the car in front of him, in violation of state law (Code § 68-1641(a)); (h). operating a tractor not equipped with adequate, sufficient, and serviceable brakes capable of stopping the tractor and preventing skidding; (j). operating a tractor 'not capable upon application of the service (foot) brakes within 10 feet of the rear of said vehicle on the end of the westbound line of cars of bringing said tractor to a standstill, and such tractor was not capable upon application of its service (foot) brakes of being decelerated at the rate of 14 feet per second,' in violation of State law (Code § 68-1715); (k). failure to maintain adequate brakes 'because the brakes on said tractor were not maintained in good working order and were not so adjusted as equally as practicable with respect to the wheels on the opposite sides of such tractor and the said defendants were negligent per se in that the provisions of Code § 68-1715(c), so providing with respect to the maintenance of brakes in good working order and adjustment of same, were thereupon and thereby violated.'

The plaintiff alleged that specifications (d), (e), (f), (g), (j) and (k) constituted negligence per se.

The case was tried before a jury and resulted in a verdict and judgment of $6,500 for the plaintiff. Defendants filed a motion for a new trial on the general grounds and thereafter filed amendments adding twenty-three special grounds thereto. The trial court overruled the amended motion for new trial on every ground. The defendants excepted to this judgment. It appears from defendants' brief, however, that they have abandoned special grounds 1, 2, 3, 10, 21 and 23 of the motion for new trial.

Haas, Dunaway, Shelfer & Haas, George A. Haas, Benj. B. Blackburn, III, Atlanta, for plaintiff in error.

Walter B. Fincher, Atlanta, for defendant in error.

HALL, Judge.

1. In ground 4 defendants contend that the trial court erred in charging the jury that a 'portion of Code Ann. § 68-1626 provides that the driver of every vehicle shall, consistent with the requirements of subdivision (a) (which the court later read to the jury) drive at an appropriate reduced speed when approaching an intersection,' after having read to the jury plaintiff's allegation of negligence (d) above, and having charged that the violation of a state statute is negligence per se. Defendants contend that this charge was error because the evidence did not show that there was an intersection of 'highways,' as contemplated by the statute, at or near the place of the accident. Defendants' argument upon the evidence and the law do not support this contention, for these reasons: (1) 'When approaching an intersection' is only one of the several instances mentioned in the statute in which a driver is required to reduce his speed. The Code section requires that the driver shall control his speed with regard to all the conditions of the highway. (2) The reference to the intersection in the allegation of negligence (d) is simply illustrative of the situation where the accident occurred and does not state any additional specific ground of negligence. Laing v. Perryman, 31 Ga.App. 239, 120 S.E. 646. (3). Even if the allegation were construed to mean that the defendant was negligent in failing to slow down specifically at an intersection, the evidence would support a finding that there was an intersection, and this was not disputed at the trial. The road coming into the highway was referred to by the plaintiff as 'Spring Street' and by the defendant as a 'side road.' All the photographs in the record show a road leading into the highway from both sides. (4) Code § 68-1626 begins, 'No person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent * * *'. (Emphasis supplied.) The cases of Laing v. Perryman, 31 Ga.App. 239, 120 S.E. 646, supra. Sweeny v. City of Albany, 94 Ga.App. 887, 96 S.E.2d 527, and Shannon v. Martin, 164 Ga. 872, 139 S.E. 671, 54 A.L.R. 1246, cited by the defendants as limiting the term 'INTERSECTION' TO INTERSECTING...