Ault v. Whittemore

• Decision Date: 04 October 1945
• Docket Number: 31012.
• Citation: 35 S.E.2d 526,73 Ga.App. 10
• Parties: AULT v. WHITTEMORE.
• Court: Georgia Court of Appeals

35 S.E.2d 526

73 Ga.App. 10

AULT v. WHITTEMORE.

No. 31012.

Court of Appeals of Georgia, Division No. 2.

October 4, 1945

Syllabus by the Court.

1. The verdict was authorized by the evidence.

2 3. The exceptions to the charge of the court as contained in grounds 1, 2 and 3 of the amended motion for new trial show no error.

4. The theory of accident was not involved, under the pleadings and the evidence, and the court did not err in refusing to give in charge to the jury the written request on accident.

5. The court did not err in denying the motion for a new trial.

Hardin & McCamy, of Dalton, for plaintiff in error.

Mitchell & Mitchell, of Dalton, for defendant in error.

SUTTON Presiding Judge.

B. B Whittemore sued Lake Ault in Whitfield superior court, for damages to person and property. The petition alleged that while the plaintiff was operating his automobile along the public highway leading from Ft. Oglethorpe to Ringgold, Georgia, on June 6, 1944, he was struck and injured by the defendant's automobile, which, at the time of the collision was being operated by the defendant in the opposite direction along said highway; that the plaintiff in his automobile had entered onto and was proceeding across a bridge over Chickamauga creek on said highway, at a lawful rate of speed and to the right of the center of the highway, when the defendant approached the bridge around a curve from the opposite direction, traveling at a rate of speed in excess of 30 miles per hour, on the left of the center of said highway, and collided with the left front wheel of the plaintiff's automobile, while crossing the bridge, thereby demolishing the plaintiff's automobile, and inflicting serious, painful, and permanent injuries upon the person of the plaintiff; that the defendant was negligent in operating his automobile to the left of the center of the highway, and in operating it at an excessive rate of speed at the time and place of the collision; that the plaintiff received described personal injuries, among which was an injury to his left elbow and an injury to his left knee; that he was confined to his home for a period of two weeks, during which time he suffered excruciating pain, and still suffers pain and will continue to do so in the future; that he is a barber by trade and earned the sum of $50 per week, but on account of his alleged injuries his earning capacity has been permanently reduced at least 25 per cent; that his automobile was reasonably worth $1,000 prior to said collision, and after the collision was worth only $50 as junk; that he was 42 years of age, in good health, and had an expectancy of 26.14 years. The plaintiff sued for damages for lost time, pain and suffering, past, present, and future, for permanent reduction in his earning capacity, for a doctor's bill, and for damages to his automobile.

The defendant in his answer denied all the material allegations of the petition, and alleged that he was in the exercise of proper care in the operation of his automobile on the occasion in question, and that the plaintiff failed to exercise ordinary care for his own safety, thus causing the injuries to himself without any fault on the part of the defendant. By amendment, the defendant filed a cross-action, in which he alleged, in substance, that he exercised due care in the operation of his automobile at the time and place of the alleged collision, and that he operated his car on the proper side of the highway and at a safe rate of speed under the circumstances; but that the plaintiff failed to exercise ordinary care for the safety of the defendant, in that the plaintiff operated his automobile at an excessive rate of speed, under the circumstances, and to the left of the center of the highway, and as a result thereof collided with the automobile of the defendant; and the defendant sought a verdict for damages to his automobile in a stated amount.

The evidence for the plaintiff and for the defendant was in conflict; and it is conceded by counsel for the plaintiff in error in their brief that the evidence would have authorized a verdict in favor of either party. The jury returned a verdict for the plaintiff. The defendant filed a motion for a new trial, which was amended by adding four special grounds, and he excepted to a denial of the motion.

1. The verdict was authorized by the evidence, and the court did not err in denying the motion on the general grounds.

2. Special ground 1 assigns error upon the following charge of the court: 'I charge you, subject to the other rules of law which I have and will hereafter give you in charge, as to the case of B. B. Whittemore, and the cross-action of Lake Ault, that you will look to the evidence and determine whether or not to apply the rule of comparative negligence. If you find from the evidence in these cases that both B. B. Whittemore and Lake Ault were guilty of all or some of the acts of negligence alleged in their respective pleadings, resulting in injuries and damage to either or both, the party guilty of the greater negligence is liable to the party guilty of the lesser negligence, but you would reduce such recovery in proportion to the percentage of negligence you find attributable to the party guilty of the lesser negligence.' The plaintiff in error contends that this charge was erroneous, misleading, and confusing because of the failure of the court to qualify the same by instructing the jury that the law of comparative negligence is applicable only when neither of the parties was guilty of negligence to a degree amounting to a lack of ordinary care for his own safety; and that the charge authorized the jury to return a verdict in favor of one of the parties, although the jury might have found that the party guilty of the lesser degree of negligence was guilty of the failure to exercise ordinary care for his own safety.

The automobiles of the plaintiff and the defendant...