Blue's Truck Line, Inc. v. Harwell
| Docket Number | 26412. |
| Decision Date | 04 December 1937 |
| Parties | BLUE'S TRUCK LINE, Inc., v. HARWELL et al. |
| Court | Georgia Court of Appeals |
Rehearing Granted Dec. 14, 1937.
Judgment Adhered to Dec. 20, 1937.
Error from Superior Court, Lamar County; G. Ogden Persons, Judge.
Action by Eugene Harwell and others against Blue's Truck Line Inc. To review a judgment for plaintiffs, defendant brings error.
Reversed.
SYLLABUS BY EDITORIAL STAFF.
Martin, Martin & Snow and E.O. Dobbs, all of Macon, for plaintiff in error.
E.W. Maynard and S.G. Jones, both of Macon, for defendants in error.
Syllabus OPINION.
1. On the trial of a case brought by the husband and minor children against the owner of a truck and the operator thereof, to recover the value of the life of the wife and mother of the plaintiffs whose death it was alleged was caused from the automobile in which she was riding, with another person driving, colliding in the nighttime with the truck, with a trailer attached thereto, as a result of, alleged negligence of the owner, of the truck through the owner's agent, the driver of the truck, and of the driver himself (after the truck and trailer, due to some engine trouble caused by a defective diaphragm connected with the fuel pump, and a defective fuel pump, which condition was well known to the defendants, and to insufficiency of the brakes to hold the truck) in permitting the truck and trailer to roll backward down the incline in the highway, and causing the rear end of the trailer to get on the left side of the middle of the road, and the truck and trailer to be parked within eight feet of the center line of the highway in violation of law, and not leaving sufficient space for automobiles to pass on the left of the truck and trailer, and without having any lights on the rear end of the truck and trailer; and where there was no allegation or ground of negligence that the truck or the trailer violated any law as to size weight, or dimensions, and where the court charged the jury, as to the size, dimensions, weight, and description of trucks which may be lawfully operated on the highways of the State, that "irrespective of the size or weight or the amount of the road that the truck of the defendant company might have absorbed or used at the time it was being used, if it was being done within the rules, restrictions, and provisions as are provided by these laws," and that all users of the road have equal rights to the use of the road, and there can be no discrimination as against the truck or the size of the truck "if the jury finds that the defendant company at the time and place alleged was acting under the provisions of the law as are specified and were not guilty of the acts of negligence as are alleged in the petition;" and where the suit was not one to recover because of the size of the truck, but was a suit to recover for the alleged act of negligence of the character and nature set out in the petition, and where there was no evidence that the truck did not comply with the laws of Georgia as to size, dimensions, weight, etc., the charge in which it was stated that there can be no discrimination against the truck if the defendant company at the time and place alleged was acting under the provisions of the law as are specified was not guilty of the acts of negligence alleged in the petition, was not harmful to the defendant.
2. A charge that if the jury believe that the truck was parked within eight feet of the center line of the highway this would be negligence per se, and that if the jury believed that such parking of the truck was the proximate cause of the death of the deceased the plaintiffs would be entitled to recover, provided the deceased could not have avoided the consequences of the defendant's negligence, was not subject to the objection that the jury was thereby instructed that the act of the defendant in parking the truck as described was negligence per se, and, if the proximate cause of the death, would authorize a recovery for the plaintiffs, notwithstanding the stopping of the truck and its being parked at the time and place where it was parked was without fault on the part of the defendant, where the court elsewhere in the charge modified this instruction by stating that if it became impossible for the defendant, by reason of the motor on the truck ceasing to run, to avoid parking the truck as they did, within eight feet of the center line of the road, the defendant would be excused from a compliance with the statute prohibiting the parking of vehicles within less than eight feet of the center line of the road.
3. The charge of the court that if the jury should believe that the defendant did not have "at least two lamps of approximately equal candle-power mounted on the right and left side of said truck, as required by law", this would be negligence per se, while being an excerpt from the provisions of the statute (Code, § 68-302), which the court had already given in charge to the jury, which statute, as charged by the court, went further and referred to the lights required as being "front lamps," was not a clear statement that the lamps referred to had reference to the front lamps on the truck, but it was calculated to cause the jury to infer that the court was instructing them that the two lamps required by law were not the front lamps as the law required, but were lamps on each side of the truck. The charge was error. Sutton, J., dissents.
4. Since there is no ...
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