Central Container Corp. v. Westbrook

• Decision Date: 04 April 1962
• Docket Number: No. 39402,No. 3,39402,3
• Citation: 105 Ga.App. 855,126 S.E.2d 264
• Parties: CENTRAL CONTAINER CORPORATION et al. v. Clay WESTBROOK
• Court: Georgia Court of Appeals

Page 264

126 S.E.2d 264

105 Ga.App. 855

CENTRAL CONTAINER CORPORATION et al. v. Clay WESTBROOK.

No. 39402.

Court of Appeals of Georgia, Division No. 3.

April 4, 1962.

Rehearing Denied May 8, 1962.

Syllabus by the Court.

1. Where the defendant merely denied that the plaintiff entered the intersection where the automobile-truck collision occurred on a green light and alleged that the defendant's driver entered when the light was green in his favor, it was error to treat such allegation as an affirmative defense by the defendant to the effect that plaintiff ran a red light, and thereafter to charge that the burden was on the defendant to prove this fact by a preponderance of the evidence.

2. The charge on the elements of damage for personal injury was such as to confuse and mislead the jury into believing that they might award such amount of money as they saw fit as to all elements of damage in the case guided only by their enlightened conscience and impartially under oath. This portion of the charge should have been restricted to damages for pain and and suffering only.

3. The trial court did not abuse his discretion in refusing to grant a mistrial for certain remarks of counsel, where he took proper corrective measures by instructing the jury to disregard such remarks and by rebuking counsel for making them.

4. A qualified witness may give opinion evidence as to speed based on data observed immediately after a collision, such as skid marks, distances, and the positions of and damage to the vehicles. If it be developed by further examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence.

5. Where the court's instruction on a certain principle of law is correct and complete, is equally as specific as an instruction requested, embodies substantially the same material, and has the advantage of being more precise and less argumentative than the request, no reversible error is committed in failing to charge in the language requested.

6. As to facts charged in the petition which cannot be presumed to be within the knowledge of the defendant, an allegation that for lack of information the defendant neither admits nor denies the fact is tantamount to a denial.

7. The general grounds of the motion for a new trial are without merit.

Clay Westbrook filed an action for damages in the Superior Court of Hall County against Central Container Corporation and its employee John Latimer, alleging in substance that the intersection of Georgia Highways 5 and 140 is controlled by an overhead automatic signal light; that plaintiff was riding in his automobile which was being driven by Kirk, who, on approaching the intersection, slowed down to approximately 15 miles per hour behind another vehicle which had stopped waiting for the signal light to charge from red to green; that after the light turned green, plaintiff's driver proceeded west into the intersection, and that Latimer, driving a tractor-trailer owned by the corporate defendant, approached and attempted to cross the intersection in the face of a red signal light at a high rate of speed. striking and demolishing the plaintiff's automobile and inflicting severe physical injuries on him. Negligence was alleged in driving the tractor-trailer at a speed over 50 miles an hour, driving at a greater rate of speed than was reasonable and prudent, failing to control speed so as to avoid colliding with plaintiff's automobile, failing to observe the traffic control device, failing to reduce speed on approaching the intersection, and striking plaintiff's automobile after the same had already entered the intersection. The trial resulted in a verdict for the plaintiff. The defendants assign error on the overruling of the motion for a new trial as amended.

Wheeler, Robinson & Thompson, Emory F. Robinson, Gainesville, for plaintiff in error.

Henderson & Pope, A. J. Henderson, Canton, Brannon & Brannon, Gainesville, for defendant in error.

RUSSELL, Judge.

1. Special ground 2 of the amended motion for a new trial assigns error on the ground that the court misstated the contentions of the defendant. The jury was instructed that the defendant contended and alleged that the plaintiff entered the intersection against the red light of the traffic control signal and thereby caused the collision, when in fact this allegation had been stricken from the petition and defendant merely alleged that the defendant entered the intersection on a green light. To the unwary eye these allegations appear substantially of the same import, but the defendant had some evidence in the case that the traffic signel controlling the intersection was not functioning properly shortly before the collision, and it insists that the charge was prejudicial in that it tended to deprive it of this defense. It is usually error to charge a contention of the parties not made by the pleadings and evidence. Ellison v. Robinson, 96 Ga.App. 882, 885, 101 S.E.2d 902. In the present case the court compounded the error by further charging as complained in special ground 4: 'The preponderance of the evidence is binding on the defendant the same as it is on the plaintiff, and where the defendant alleges that the plaintiff approached the light while it was red and that he ran the red light, the burden is on the defendant to establish that by a preponderance of evidence to the satisfaction of the jury.' Not only did the defendant not allege that the plaintiff had run a red light; but the fact that the defendant denied, as it did, allegations of the petition that plaintiff's driver entered the intersection on a green light and alleged that defendant's driver had a green light did not cast on it the burden of proving by a preponderance of evidence that such was the case because this was no such affirmative defense as would change the burden of proof, or the burden of proceeding with evidence, from the plaintiff to the defendant. See Whitley v. Wilson, 90 Ga.App. 16, 81 S.E.2d 877. The burden still remained upon the plaintiff to prove that his driver entered on a green light, and the defendant was not under the duty of disproving this fact by a preponderance of the evidence. Since the injuries occurred as the result of an intersection collision at a place controlled by an electric traffic signal, the question of which party had the burden of showing that it entered under a green light and did not violate the law by entering on a red signal was the most crucial single issue in the case. It is error to give instructions to the jury which cast upon the complaining party a burden of proof greater than that devolving upon it under the law. Courson v. Pearson, 132 Ga. 698(2), 64 S.E. 997; Farmers' State Bank v. Kelley, 159 Ga. 280(2), 125 S.E. 467; Battle v. Williford, 160 Ga. 287(3), 127 S.E. 762; Turner v. Warren, 193 Ga. 455(5), 18 S.E.2d 865. These grounds of the motion for a new trial should have been sustained.

2. Error is assigned in special ground 7 because the court, after instructing the jury that the measure of damages for pain and suffering would be the enlightened conscience of fair and impartial jurors, continued: 'I charge you that the elements of damage, when there is physical injury, are suffering, that is physical and mental, past and future, loss of time from work, the consequent loss of wages, medical and other expenses, injury to health and other physical conditions, loss of capacity to make a living and loss of ability to labor or to work, and take into consideration whether the injuries, as contended by the plaintiff, are permanent or whether they are not permanent. If you find in favor of the plaintiff in this case, in estimating the damages, the jury should act impartial and according to their consciences, the amount should be reasonable and just as to both parties and should compensate the plaintiff for injuries received. After all, in estimating these damages, gentlemen, you are quided by your enlightened conscience and by your impartiality under oath.' [Emphasis supplied].

While mental and physical pain and suffering, of which loss of ability to work and labor is a part, is an element of damage resting within the jury's conscience, loss of wages, medical expenses, bodily injury and earning capacity are elements of damage recovery for which depends upon proof of the monetary value of the loss. See Hunt v. Williams, 104 Ga.App. 442, 122 S.E.2d 149, and...