City of Macon v. Smith, 43310
| Decision Date | 20 February 1968 |
| Docket Number | No. 43310,2,3,Nos. 1,43310,s. 1 |
| Citation | 117 Ga.App. 363,160 S.E.2d 622 |
| Parties | CITY OF MACON v. Henry SMITH et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The burden of proving the affirmative defense that defendant is entitled to statutory exemptions from traffic regulations rests upon defendant, and in order that a defendant may claim exemptions applicable to emergency vehicles the conditions of the emergency-vehicle statute must be met. Accordingly it cannot be said as a matter of law that an ambulance requested of a defendant's hospital is 'responding to an emergency call' so as to be entitled to exercise the privileges of the emergency-vehicle statute where there is no evidence as to the substance or nature of the call for the ambulance as received and acted upon by the hospital.
2. No reversible error appears in the admission of evidence over objection where evidence to the same effect is subsequently elicited from the same witness without objection and is also subsequently elicited by the objecting party.
3. It is not error in a wrongful death action to allow in evidence a photograph of the deceased taken shortly after death for the purpose of proving that the deceased died of injuries received in a collision for which the defendant is sought to be held responsible.
4. Where counsel is charged under Code § 81-1009 with making statements in the hearing of the jury of prejudicial matters not in evidence, and the trial court sufficiently takes the corrective measures prescribed by the Code section, the granting or denial of a motion for mistrial rests in the legal discretion of the trial court.
5. Under the circumstances of this case there was no abuse of discretion in overruling a motion for mistrial made when a witness identified a statement as one he had given to an insurance adjuster.
6. Where a municipal ordinance is relied upon as establishing applicable speed limits, and the parties, instead of proving the ordinance and including it in the record on appeal, attempt orally at the trial to stipulate the speed limits as fixed by the ordinance but are unable to agree completely thereon, this court is in no position to reverse the trial court for failure to charge the particular speed limit contended for under the ordinance where the court charged the stipulation to the jury to the extent apparently agreed upon.
7. Where the trial court instructs the jury in a wrongful death action that in the event the jury finds for the plaintiffs the form of their verdict would be, "We, the jury, find for the plaintiff in the sum of so many dollars,' not to exceed the sum sued for * * *,' the italicized portion of the charge is not objectionable as an indication or expression of opinion by the court as to the value of the life of the deceased.
8. In a wrongful death action it is not error to fail to charge the jury that after finding the full value of the life of the deceased, they should then reduce that amount to its present cash value. It is not the 'full value of the life,' the statutory measure of damages, which must be reduced, but only properly reducible items which aid the jury in arriving at the full value.
9. The verdict was not, as contended, excessive as a matter of law.
10. The recharge of the court on the standard of care applicable to appellant was not so vague, confusing, or misleading on the grounds urged as to constitute reversible error.
The four children of Mrs. Dicie Bazzell brought suit against the City of Macon and Mrs. Deweese Weaver for the wrongful death of Mrs. Bazzell, a widow, who was killed when the city's ambulance, in which Mrs. Bazzell was being transported, was in collision with Mrs. Weaver's automobile at the intersection of Napier and Pio Nono Avenues in Macon.
The petition alleged that John Joiner, an employee of the city, drove the Macon Hospital ambulance into the intersection at a speed of approximately 50 miles per hour in disregard of a red or stop traffic light and into the path of Mrs. Weaver's automobile, which had approached on an intersecting street at a speed of approximately 35 miles per hour. It was alleged that the city owned and operated the Macon Hospital and its ambulance service and that Joiner was operating the ambulance in the course of his employment with the city. Negligence per se was charged against the city in speeding and in disregarding the red traffic signal.
The city answered, alleging that the sole proximate cause of the collision and death of Mrs. Bazzell was the negligence of Mrs. Weaver, the other defendant, and setting up the affirmative defense that its driver was operating an authorized emergency vehicle as defined by Code Ann. § 68-1502, subd. 1(e) and was entitled, under Code Ann. § 68-1604, to proceed through the red traffic light in question.
The evidence adduced at the trial showed that on the morning of the collision the decedent suffered a painful condition in her back or hip and felt unable to travel in an automobile for treatment. Henry Smith, one of decedent's sons, went across the street to the home of Mrs. Pierce, reported his mother's condition to her, and asked her to call an ambulance. He did not, however, tell her that it was an emergency. Plaintiffs attempted on three separate occasions to place Mrs. Pierce on the stand to testify as to her telephone conversation with the clerk at the hospital when she called for the ambulance, but the city objected in each instance and the objections were sustained. Paul Vogen, assistant administrator of the hospital, testified that a Mrs. Whitehead had received the call at the hospital and had filled out the dispatch slip for the ambulance. He further testified that standard procedure is for the clerk receiving the call to fill out the dispatch slip as 'emergency' or 'non-emergency' on the basis of the information received from the person calling. Mrs. Whitehead was available at the trial as a witness, apparently under subpoena of the city, but she was not called to testify by any of the parties as to the substance of her conversation with Mrs. Pierce. Thus the record is silent as to the substance and nature of Mrs. Pierce's call for the ambulance as received by the hospital.
Joiner testified that as he came in to work at the hospital on the morning in question, he was met at the back door by a Mrs. Watkins who told him there was an emergency in the Bellevue section. He was given a dispatch slip marked 'emergency' and proceeded to decedent's address under emergency conditions in accordance with his instructions. Upon arrival he was advised by Smith that something was wrong with his mother's hip and that she had the same trouble before. She was placed on the stretcher which had been elevated to a sitting position because she was unable to lie back, and the stretcher was loaded aboard the ambulance. Joiner then proceeded on the return trip to the hospital with siren and light in operation, continuing to treat the call as an emergency in accordance with his prior instructions from the hospital. He testified under intense questioning that until his instructions were countermanded by higher authority, he had no discretion to treat the call as a anything but an emergency call. There seems to be no dispute in the record that on the return trip to the hospital, when the collision occurred, Joiner proceeded on Napier Avenue into the intersection through a red light facing him and that Mrs. Weaver had the green light on Pio Nono Avenue, the intersecting street. There was a conflict in the evidence as to the speed of the vehicles and as to whether the intersection was a 'blind' intersection or not.
Verdict and judgment were in favor of plaintiffs against the city only, and the city appeals.
Harris, Russell & Watkins, Philip R. Taylor, Macon, for appellant.
Buford E. Hancock, Melton, McKenna & House, Buckner F. Melton, Mitchell P. House, Jr., Jones, Sparks, Benton & Cork, Ed L. Benton, Carr Dodson, Macon, for appellee.
1. One of the crucial issues in the case below was whether the ambulance driver was operating an 'authorized emergency vehicle * * * responding to an emergency call' so as to be entitled to the privileges set forth in Code Ann. § 68-1604. That section provides:
'(a) The driver of an authorized emergency vehicle, when responding to an emergency call, * * * may exercise the privileges set forth in this section, but subject to the conditions herein stated.
'(b) The driver of an authorized emergency vehicle may:
'(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.'
It is not disputed that the ambulance was an authorized emergency vehicle as defined by Code Ann. § 68-1502, subd. 1(e), or that the siren and light were in operation as required by Code Ann. § 68-1604(c). The controversy centers around whether the driver was 'responding to an emergency call' within the meaning of Code Ann. § 68-1604(a) so as to be entitled to exercise the privileges afforded emergency vehicles. Enumerations of error 6, 8 and 9 complain that the court erred in failing to give defendant city's requests numbers 2, 7 and 8 to charge. These requests, if given, would have instructed the jury that the evidence conclusively showed that Joiner was responding to an emergency call and that the rules respecting the operation of emergency vehicles should be applied by the jury; that whether the ambulance was being operated in response to an...
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