Carr v. John J. Woodside Storage Co., 21354

• Decision Date: 24 October 1961
• Docket Number: No. 21354,21354
• Citation: 123 S.E.2d 261,217 Ga. 438
• Parties: Mrs. William Pierce CARR, Sr. v. JOHN J. WOODSIDE STORAGE COMPANY, Inc.
• Court: Georgia Supreme Court

Page 261

123 S.E.2d 261

217 Ga. 438

Mrs. William Pierce CARR, Sr. v. JOHN J. WOODSIDE STORAGE COMPANY, Inc.

No. 21354.

Supreme Court of Georgia.

Oct. 24, 1961.

Rehearings Denied Nov. 10 and 21, 1961.

Randall Evans, Jr., Thomson, for plaintiff in error.

Robert E. Knox, Thomson, Fulcher, Fulcher, Hagler & Harper, Augusta, for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

Mrs. Carr sued John J. Woodside Storage Company, Inc. and Transport Insurance Company for damages in the Superior Court of McDuffie County, alleging that a driver of a truck owned by Woodside while operating it for the owner and in the prosecution of its business wrongfully killed her 18 year old son when the truck he was operating collided with a small car her son was driving. The case resulted in a verdict for the defendants, and the Court of Appeals, with Judge Townsend dissenting, affirmed a judgment refusing to grant the plaintiff a new trial on her amended motion therefor. Carr v. John J. Woodside Storage Company, Inc., 103 Ga.App. 858, 120 S.E.2d 907. Mrs. Carr applied to this Court for the writ of certiorari, assigning error on several different rulings the Court of Appeals made and her application was granted. Held:

1. On the trial and before the jury retired to consider this case, the plaintiff Mrs. Carr requested the court in writing to charge the jury as follows: 'Gentlemen of the Jury, the Plaintiff contends that the Defendant's agent, John Albert Smith, committed wilful and wanton negligence through driving the Defendant's truck at a fast and illegal rate of speed while intoxicated, and through failing to keep a proper lookout ahead, and through failing to reduce speed on the approach to an intersection, and through failure to apply the brakes in time to avoid colliding with the automobile driven by her son. I charge you, Gentlemen of the Jury, that if from the evidence you find that John Albert Smith was guilty of wilful and wanton negligence and that such wilful and wanton negligence resulted in the homicide of Plaintiff's son, then and in that event, even though you might find that Plaintiff's son committed negligence, such negligence on the part of her son would not defeat a recovery by Plaintiff in this case.' As to the form and time when the request was made no question is raised but it is strongly argued that the evidence in this case did not require the giving of such a charge. The trial judge declined to give the charge so requested and the Court of Appeals held that he committed no error in failing to do so. Respecting this, we think the Court of Appeals erred. It was unanimously held in Central Railroad & Banking Co. v. Newman, 94 Ga. 560(2), 21 S.E. 219, 'When the defendant's wrongful act was not only a failure in diligence, but was willful or so grossly negligent as to be wanton and reckless, the mere failure of the plaintiff or his servant in the exercise of ordinary care will not defeat a recovery.' An opinion prepared for the Court of Appeals by Judge Powell in the case of Central of Georgia Railway Co. v. Moore, 5 Ga.App. 562, 564, 63 S.E. 642, 644 employs this language: 'Complaint is made that the court charged the jury that, if the plaintiff was injured by 'willful and wanton negligence' of the defendant * * * he would be entitled to recover irrespective of whether he was guilty of contributory negligence or not. We understand this to be the law. It is so stated in practically all the textbooks on the subject, and is fully recognized by the Supreme Court of this state and by this court [citations omitted]. The liability is a harsh one, but it is just where the facts of the case warrant it. The court, in charging the jury upon the 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.' In Tice v. Central of Georgia Ry. Co., 25 Ga.App. 346, 103 S.E. 262; and Southern Grocery Stores v. Herring, 63 Ga.App. 267, 11 S.E.2d 57, similar rulings were also made.

Before relating any of the evidence which we find in the record, it is entirely proper that we cited certain provisions of law which are applicable to such requested charge, they being, namely, (1) 'No person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.' Code, Ann.Supp. § 68-1626(a). 'The driver of every vehicle shall, consistent with the requirements of subdivision (a) [of § 68-1626] drive at an appropriate reduced speed when approaching and crossing an intersection.' Code, Ann.Supp. § 68-1626(b), par. 3, (c); (2) 'Where the total gross combined weight of trucks or truck-tractors and trailers and load in pounds is between 10,000 and 16,000 pounds the maximum speed shall not exceed 50 miles per hour.' Code, Ann.Supp. § 68-1626(b), par. 3; 'It is unlawful and punishable as provided in section 68-9927 for any person who is under the influence of intoxicating liquor to operate or drive any vehicle [on the streets and highways of this State].' Code, Ann.Supp. § 68-1625; The driver of an automobile must keep a vigilant lookout ahead for traffic. Eubanks v. Mullis, 51 Ga.App. 728, 181 S.E. 604.

Respecting the request to charge in the instant case, the jury was fully authorized to find from the evidence: The defendant John J. Woodside Storage Company, Inc. was during all times mentioned in the amended petition a motor common carrier for hire. The defendant Transport Insurance Company carried its public liability insurance. John Albert Smith, a Negro man, was employed by the defendant Woodside as a driver of one of its trucks and at the time of the collision complained of in this case was driving Woodside's truck in the course of his employment and in the prosecution of his employer's business. He had transported a load of merchandise from Atlanta to Augusta, Georgia, on Saturday, June 13, 1959, and was returning over State Highway 12 on the following day. His empty truck weighed 11,590 pounds. Smith was alone in the truck. Between Thomson and Warrenton and at the intersection of State Highway 12 and the Wire Road there was a collision between the truck Smith was driving and a stripped-down Ford car which the plaintiff's son, age 18, was driving. The Carr boy was killed instantly. Smith was traveling west on State Highway 12 and Carr was traveling south on Wire Road when the collision occurred. The collision occurred about 3:30 p. m. Carr was about 4 feet on the pavement of the highway when the two vehicles collided. About 450 feet east of the intersection of State Highway 12 and the Wire Road and on the north side of the state highway which was to Smith's right there was a sign warning motorists of such intersection and Smith, the driver of Woodside's truck, testified that he noticed the sign but did not apply his brakes or reduce his speed before reaching the intersection. He however testified that he was not traveling more than 45 miles per hour at such time, but Martha Poole, the court reporter testified that he had sworn on a previous hearing of the case that he was traveling 50 miles per hour at the time of the collision. Several witnesses estimated Smith's speed at from 60 to 70 miles per hour at the time of the collision. The evidence shows there were no skid marks on the pavement which the truck made before the impact. The right front wheel of the truck was broken down when it finally stopped. After the collision the truck diagonally crossed the highway, went through some bushes or small trees, tore down a wire fence, went on up the hill where it crossed a ditch from 20 to 24 inches deep and 3 feet wide and then continued to go further on up in the field before it stopped. Two witnesses for the plaintiff testified that Smith, the driver of the truck had been drinking some intoxicant at the time of the collision, one of these witnesses (Lindsey Reeves) testified that he (Smith) in his opinion had just recently taken a drink as he had a strong odor of an intoxicant on his breath. Two boys who were in the automobile with Carr at the time he was killed testified that they had been riding with him during the afternoon of the collision. The foot brakes on his car were working perfectly. The three started to a nearby service station to get water for his radiator. In going there, they had to stop at a railroad crossing and his brakes were then in good condition and stopped his car normally when applied. They were traveling on Wire Road and approaching a stop sign on that road at the intersection of State Highway 12; two other cars had stopped in front of them. Carr applied his brakes and they had completely gone out on him and for that reason he was unable to stop. Carr was then traveling from 20 to 30 miles per hour. Carr passed the two cars which had parked in front of him to the left of them as there was no passing room to the right of them.

Johnny Pentecost, a witness for the defendants, testified that his car had stopped on Wire Road at the stop sign. No car was then between his car and the highway (State Highway 12). While so parked, the Carr boy passed his car to his left at a speed of about 30 miles per hour. His car was parked about 20 feet from the north edge of the paved part of the highway and he could see down the highway in the direction from which the truck was coming for a distance of about 400 yards. There was nothing between the truck and his...