Bowen v. Smith-Hall Grocery Co.

• Decision Date: 17 November 1916
• Docket Number: 106.
• Citation: 91 S.E. 32,146 Ga. 157
• Parties: BOWEN v. SMITH-HALL GROCERY CO.
• Court: Georgia Supreme Court

91 S.E. 32

146 Ga. 157

BOWEN v. SMITH-HALL GROCERY CO.

No. 106.

Supreme Court of Georgia

November 17, 1916

Syllabus by the Court.

An objection to evidence as incompetent is not sufficiently specific to avail in the reviewing court. To make such an objection available here, the grounds upon which counsel in the court below claimed that the evidence was incompetent should have been stated.

The court erred in charging the jury, in substance, that if the defendants did not use ordinary care and the plaintiff did not, then the plaintiff could not recover. This charge should have been qualified by limiting the effect of the plaintiff's failure to use ordinary care to some particular fact causing or contributing to the happening which resulted in the plaintiff's injuries.

The ordinance set out in the petition appears to have been a sanitary measure; and, so considered, its violation would not be negligence per se as to persons driving along the highway though such violation might be negligence as a matter of fact relatively to the plaintiff.

Grounds of a motion for a new trial should be complete in themselves and when a particular ground is under consideration reference to other grounds should not be required in order to understand the assignments of error.

An expression or intimation of opinion by the trial judge upon the facts of the case is error.

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by Grady Bowen against the Smith-Hall Grocery Company. There was a judgment for defendants, and plaintiff brings error. Reversed.

Rosser & Shaw, of La Fayette, M. C. Tarver, of Dalton, and W. M. Henry, of Rome, for plaintiff in error.

Maddox, McCamy & Shumate, of Dalton, for defendants in error.

BECK J.

Grady Bowen brought suit for damages against the Smith-Hall Grocery Company, a partnership doing business in the city of Dalton. The petition as amended contained, among other allegations, the following: The defendants' storehouse and place of business fronts on Hamilton street, the principal business street of the city, upon which at all times of the day there is a large amount of travel by pedestrians and vehicles. At the time of the injury complained of there was in force in the city the following ordinance:

"The proprietor of each business house must keep a covered garbage can outside of his place of business, in which must be placed all refuse, garbage, and trash from said place of business, to be called for by the proper city officers."

On the day of the injury the defendants, through their employés, placed upon and near the street and sidewalk in front of their place of business a large amount of trash and loose sheets of paper, without putting it in a receptacle or confining it in any way. The sheets of paper were light and were naturally liable to be blown about the street by even a slight breeze, and naturally tended to excite and frighten even quiet and steady horses. The plaintiff, who was a capable driver, was driving two reasonably well broken, steady, and roadworthy horses along the streets. The wind blew some of the paper on the horses and against their legs, which frightened them and caused them to run away, overturning the vehicle, breaking the tongue out of it, and causing the plaintiff to be violently thrown to the ground, to his serious personal injury. He alleged that the violation of the city ordinance was negligence per se on the part of the defendants; but, without regard to the ordinance, that they were negligent in placing the trash and paper where it was deposited.

The defendants demurred to the petition, upon several grounds. The questions made by the demurrer were ruled adversely to the plaintiff upon a former trial in the court below, and upon writ of error the judgment of the lower court was reversed. Bowen v. Smith-Hall Grocery Co., 141 Ga. 721, 82 S.E. 23, L.R.A. 1915D, 617. On a subsequent trial the verdict was against the plaintiff; and his motion for a new trial was overruled.

1. An objection to evidence as incompetent is not sufficiently specific to avail in the reviewing court. To make such an objection available here, the grounds upon which counsel in the court below claimed that the evidence was incompetent should have been stated. And so, where evidence was objected to as irrelevant and incompetent, and the court admitted the evidence, this ruling will not...