Bellamy v. Ga. Power Co

• Decision Date: 08 July 1942
• Docket Number: No. 29507.,29507.
• Citation: 67 Ga.App. 569,21 S.E.2d. 294
• Parties: BELLAMY. v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

21 S.E.2d. 294

67 Ga.App. 569

BELLAMY.

v.GEORGIA POWER CO.

No. 29507.

Court of Appeals of Georgia, Division No. 2.

July 8, 1942.

Syllabus by the Court.

In an action for damages it was error for the court to charge the jury that if the plaintiff, who was riding with her husband in his automobile, could have prevented the injuries to herself by the exercise of ordinary care she could not recover, where there was no evidence authorizing a finding that she had been in any way negligent.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by Mrs. H. E. Bellamy against the Georgia Power Company to recover for personal injuries allegedly caused by a collision between a street car and the automobile in which the plaintiff was riding. To review a judgment overruling the plaintiff's motion for new trial, the plaintiff brings error.

Judgment reversed.

Mrs. H. E. Bellamy sued Georgia Power Company for damages for personal injuries alleged to have been caused by a collision between a street car and the automobile driven by plaintiff's husband, with whom plaintiff was riding. The petition charged that the proximate cause of the damage was the negligence of the defendant in running the street car onto the rear of the automobile. The answer denied the allegations of the petition. The jury found for the defendant and the plaintiff excepts to the overruling of her motion for new trial.

G. Seals Aiken and Geo. T. Manley, both of Atlanta, for plaintiff in error.

MacDougald, Troutman & Arkwright and William H. Schroder, Jr., all of Atlanta, for defendant in error.

FELTON, Judge.

The following charge of the court is excepted to: "If the jury should believe the plaintiff in this case was injured, and if the jury should believe that such injury was due to negligence on the part of the operator of the street car, and that such injury could not have been prevented by the exercise of ordinary care on the part of the plaintiff to prevent injury to herself, then and in that event the plaintiff would be entitled to recover. If, on the other hand, the jury should believe that the plaintiff was injured while a guest in an automobile, but if the jury should believe that the plaintiff herself, by the exercise of ordinary care for her own safety, could have prevented injury to herself, she would not be entitled to recover."

Under the evidence there was only one issue for the jury to decide, and that was whether the injury was caused by the negligence of the defendant's driver in driving the street car onto the rear of the automobile after the automobile had passed the street car and had gotten clearly in front of it, as contended by the plaintiff, or whether it was due solely to the negligence of the plaintiff's husband in attempting to pass the street car at a place...