Carr v. John J. Woodside Storage Co.
| Decision Date | 12 May 1961 |
| Docket Number | Nos. 1,3,No. 38687,2,38687,s. 1 |
| Citation | 103 Ga.App. 858,120 S.E.2d 907 |
| Parties | Mrs. W. P. CARR, Sr. v. JOHN J. WOODSIDE STORAGE COMPANY, Inc., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The last clear chance doctrine is applicable only where the defendant knows of the plaintiff's perious situation, and realizes, or has reason to realize, his helpless or inattentive condition.
2. A charge on wilful and wanton negligence is never applicable in a negligence action unless the conduct of the negligent party was such as to evidence a wilful intention to inflict the injury or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.
3. In order to recover against the defendant in a negligence action on the ground of driving under the influence of an intoxicating beverage, it is necessary to show that the defendant was less capable of operating his motor vehicle than he would have been if he were not affected by such intoxicating beverage, and that such was the proximate cause of the injury.
4. It is not improper for a trial judge to recall the jury to charge a principle of law which through oversight was not included in the regular charge.
5. The trial court did not err in denying the plaintiff's amended motion for a new trial on the general and eight special grounds.
Mrs. William Pierce Carr, Sr., filed her suit in the Superior Court of McDuffie County, Georgia, against John J. Woodside side Storage Co. and Transport Insurance Co. to recover damages because of the death of her minor son, William Pierce Carr, Jr., which resulted from a collision between an automobile driven by her decedent and a van-type truck owned and operated by the defendant storage company. The jury returned a verdict for defendant and plaintiff excepts to the order of the trial court denying her amended motion for a new trial.
Randall Evans, Jr., Thomson, for plaintiff in error.
Fulcher, Fulcher, Hagler & Harper, Gould B. Harper, Augusta, Robert E. Knox, Thomson, for defendant in error.
1. Special ground 1 of the amended motion for a new trial assigns error on the refusal of the court to give to the jury a requested charge on the doctrine of last clear chance. As pointed out by the Supreme Court in Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 670, 88 S.E.2d 6, it is only where the defendant knows of the plaintiff's perilous situation and realizes or has reason to realize the plaintiff's helpless condition, that the defendant under the doctrine of last clear chance is charged with a duty of using with reasonable care and competence his then existing ability to avoid harming the plaintiff. Since the undisputed evidence in this case disclosed that the defendant's driver did not have knowledge of the perilous situation of the plaintiff's decedent until his vehicle was within six feet of the decedent's vehicle, and at which instant the collision occurred, the doctrine of last clear chance, as applied in Georgia, was not applicable to the facts of this case and the trial court did not err in refusing to give the requested charge. The plaintiff's argument that the defendant's driver could or should have seen the vehicle in which plaintiff's decedent was riding sooner than he did is not sufficient to require the requested charge.
2. Special ground 2 assigns error on the refusal of the trial court to give to the jury a requested charge on wilful and wanton negligence.
Wilful and wanton misconduct has been defined by this court to be 'such as to evidence a willful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences * * * as to justify the jury in finding a wantonness equivalent in spirit to actual intent.' Lanier v. Bugg, 32 Ga.App. 294, 297, 123 S.E. 145, 146. See Edwards v. Atlanta B. & C. R. Co., 63 Ga.App. 212, 10 S.E.2d 449. Upon this subject this court has said: 'The court in charging the jury upon this subject should make it plain that it is never applicable unless the defendant's conduct was such as to evince a willful intention to inflict the injury or else was so reckless or so charged with indifference to the consequences where human life or limb was involved as to justify the jury in finding a wantonness equivalent in spirit to actual intent.' Central of Georgia Ry. Co. v. Moore, 5 Ga.App. 562, 565, 63 S.E. 642, 644. 'In an action to recover damages for injuries alleged to have been inflicted by reason of negligence, before the person charged with the negligence can be held guilty of willful or wanton negligence the evidence must show that he knew his conduct would inflict injury, or that, on account of the attendant circumstances which were known to him, or with knowledge of which he was chargeable, the inevitable or probable consequences of his conduct would be to inflict injury, and with reckless indifference to the consequences of such conduct he committed the act, or omitted to do his duty to avoid the threatened injury.' Southern Ry. Co. v. Davis, 132 Ga. 812, 818, 65 S.E. 131, 134.
While the plaintiff introduced evidence to the effect that the defendant's agent was operating the defendant's truck at a speed of 60 to 70 miles per hour at the time of the collision; that he failed to reduce such speed upon approaching the intersection; that he failed to apply his brakes in time to avoid colliding with the automobile being operated by the plaintiff's decedent; and that immediately after the collision an odor of an intoxicating beverage was detected on his breath by the investigating officers, such evidence, under the principles of law above cited, is insufficient to show wilful and wanton negligence on the part of the defendant. Accordingly, a charge on wilful and wanton negligence being inapplicable to the present case, the trial court did not err in refusing to give the same upon request.
3. The trial judge did not err in charging the jury that before anyone would be entitled to recover against a defendant on the ground of driving under the influence of an intoxicating beverage, it would be necessary to show that the defendant was less capable of operating a car than he would have been if he had not done the drinking, and that such was the proximate cause of the injury. Special ground 6 is without merit.
4. The trial court did not err in giving in charge to the jury the provisions of Code, § 68-1715(a) since the evidence disclosed that the automobile being operated by the plaintiff's decedent was not equipped with the braking systems required by this Code section. The mere fact that the judge recalled the jury to charge this principle of law, which through oversight was not included in the regular charge, was not improper. Patterson v. State, 122 Ga. 587(1), 50 S.E. 489. Special ground 7 is without merit.
5. Special ground 3 complains that the following excerpt from the charge of the court was argumentative and prejudicial to the plaintiff: ...
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Butts v. Davis, 47045
...which entered into the proximate cause of the collision.' This language is in accord with the ruling in Carr v. John J. Woodside Storage Co., 103 Ga.App. 858, 120 S.E.2d 907. The trial judge properly left to the jury for determination whether the plaintiff's driving capabilities had been im......
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...oversight was not included in the regular charge.' Patterson v. State, 122 Ga. 587(1), 50 S.E. 489. See also Carr v. John J. Woodside Storage Co., 103 Ga.App. 858(4), 120 S.E.2d 907 and Black v. Aultman, 120 Ga.App. 826, 830(7), 172 S.E.2d 6. The seventh enumeration of error complains of th......
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