Brooke v. Bowers
| Decision Date | 01 March 1955 |
| Docket Number | No. 2,No. 35491,35491,2 |
| Citation | 91 Ga.App. 543,86 S.E.2d 341 |
| Parties | Esther Lee BROOKE v. S. B. BOWERS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where there is no evidence whatsoever on the issue of contributory negligence, it is error requiring the grant of a new trial for the trial court to submit such issue to the jury.
2. Where a case is being remanded for another trial, such errors as are not likely to recur on the new trial will not be considered.
Mrs. Esther Lee Brooke brought an action for damages against Sam B. Bowers, Sr., Sam B. Bowers, Jr., and Richard Bowers, doing business under the name of S. B. Bowers, Sr. & Sons, for the death of her husband. The material allegations of her petition are substantially as follows. The plaintiff lives in a farmhouse located about three miles from Sycamore, Georgia, on the north side of Georgia State Highway No. 32, which highway runs in a generally west-to-east direction from Sycamore to Ocilla, Georgia. About eight miles west of Ocilla, the road forks at a road junction, and the right fork continues to Ocilla as Highway No. 32, while the left fork continues to Fitzgerald, Georgia, as Georgia State Highway No. 107. As Highway No. 32 approaches the plaintiff's house from the west, if first comes down a long hill and then starts upgrade, passes an intersecting country road, and rounds into a gentle curve in front of the plaintiff's house, with the plaintiff's house on the inside of the curve. The highway is so graded and banked in this area that the shoulder on the south side of the paved portion of the highway, that is, on the outside of the curve, is higher and broader than the shoulder on the north side, and because it is higher and broader, this shoulder is more adaptable for walking. Walking on the north side is hampered further by the presence of two Georgia State Highway Department road signs, which are so erected on the north shoulder of the highway as to leave small room for walking between the signs and the paved portion of the highway. And because there are no sidewalks, and the aforesaid conditions, the south shoulder is customarily used by pedestrians when traveling around the curve in front of the plaintiff's house, and such travel on the south shoulder has worn away the grass and formed a path approximately nine feet wide atop the shoulder next to the paved portion of the highway.
On the evening of September 11, 1952, at about dusk, the plaintiff and her husband left their home and started walking along the highway going east, in order to visit their son, who lives on the north side of the highway about one mile east of the plaintiff's house, and because the grass on the north side was wet and the shoulder of the south side of the highway was more adaptable for walking, the plaintiff and her husband crossed to the south shoulder and began walking in the direction of their son's house. Her husband walked nearer the paved portion of the highway, and the plaintiff was walking to the south of him. While they were walking along the path on the south shoulder, a red International truck and trailer, owned by the defendants, and driven by Theodorus Blue, came down the long hill from the west at a reckless, excessive, and unlawful speed of 50 miles per hour, and in attempting to round the curve in front of the plaintiff's house, the truck swung wide to the outside of the curve to such an extent that some part of the truck and trailer, or the load thereon, the exact part being unknown to the plaintiff, extended far beyond the paved portion of the highway and struck the plaintiff's husband as he walked along the path on the shoulder of the highway. The blow knocked her husband off his feet and caused injuries to his back and the back of his head, from which he died on October 7, 1952, and the injuries so occasioned were the immediate and proximate cause of his death.
After striking the plaintiff's husband, the truck and trailer swerved back toward the center line of the highway and continued at an unabated speed in an easterly direction down the highway.
At the point where the vehicle struck her husband, the paved portion of the highway is 20 feet wide, and the top portion of the shoulder of the highway which formed the path on which the plaintiff and her husband were walking is nine feet wide. At the time the plaintiff's husband was struck, there was no other traffic of any kind in sight, either going or coming, and the highway was clear of any obstructions of any kind. At the time the plaintiff's husband was struck by the defendant's truck, he was walking along the path on the south shoulder of the highway in such manner that the part of his body nearest the paved portion of the highway (to his left) was 30 inches away from the paved portion and the plaintiff was walking beside him on the side away from the paved portion of the highway. The plaintiff and her husband heard the approach of the truck and saw the beams from its headlights shortly before it struck her husband; but feeling secure in the knowledge that the highway was clear of traffic and the fact that they were well off the paved portion of the highway, they continued to walk in the same relative positions to the highway, having no reason to suspect that the driver of the truck would drive off the paved portion of the highway and onto the shoulder where they were walking. There was nothing to obstruct the driver's view of the plaintiff and her husband once he had started around the curve some 350 yards so the west of the plaintiff and her husband; and though the plaintiff's husband was struck at about dusk, the driver had the headlights of the truck burning and clearly saw, or could have seen, the plaintiff and her husband if he had been in the exercise of ordinary care. Never at any time did the driver of the vehicle sound the horn or sound any warning of his approach or indicate that the truck was out of control and about to run off the highway onto the shoulder on which the plaintiff and her husband were walking. In approaching the intersection of the highway with the aforementioned country road, which intersection is located 110 yards west of the point at which the plaintiff's husband was struck, the driver of the truck failed to reduce his speed, and the intersection is frequently used by the farmers of the neighborhood in entering and leaving the highway. In approaching and traveling around the curve in question the driver of the truck failed to reduce his speed but continued at the rapid and excessive speed of 50 miles per hour. At the time when the truck struck the plaintiff's husband, it was loaded with bales of cotton in such fashion that the bales extended beyond the sides of the trailer so that the overall width of the vehicle and its load exceeded 96 inches. The vehicle was equipped with...
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Beadles v. Bowen, 39473
...it is error to charge on contributory or comparative negligence when there is no evidence of such negligence. Brooke v. Bowers, 91 Ga.App. 543(1), 86 S.E.2d 341; Parks v. Fuller, 100 Ga.App. 463, 467(2), 111 S.E.2d 755; Bentley v. Buice, 102 Ga.App. 101, 105(2), 115 S.E.2d 706; Sellers v. W......
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Parks v. Fuller
...trial were not authorized by the evidence, and the trial court erred in charging the jury as there complained of. See Brooke v. Bowers, 91 Ga.App. 543, 86 S.E.2d 341, Jackson v. Camp & Brown Produce Co., 92 Ga.App. 359, 362(3), 88 S.E.2d 540, and, Gleason v. Rhodes Center Pharmacy, 94 Ga.Ap......
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Davis v. Laird, 40267
... ... Specifically, it is error to charge on contributory or comparative negligence when there is no evidence of such negligence. Brooke v. Bowers, 91 Ga.App. 543(1), 86 S.E.2d 341; Parks v. Fuller, 100 Ga.App. 463, 467(2), 111 S.E.2d 755; Bentley v. Buice, 102 Ga.App. 101, 105(2), 115 ... ...
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Jacks v. Lambert
...there is no evidence at all of any negligence on the part of the plaintiff, an instruction on this subject is error. Brooke v. Bowers, 91 Ga.App. 543, 86 S.E.2d 341; Gleason v. Rhodes Center Pharmacy, 94 Ga.App. 439(1), 95 S.E.2d 293; Jackson v. Camp & Brown Produce Co., 92 Ga.App. 359, 362......