Conner v. Mangum
| Decision Date | 22 May 1974 |
| Docket Number | No. 2,No. 49283,49283,2 |
| Citation | 207 S.E.2d 604,132 Ga.App. 100 |
| Parties | Harold B. CONNER v. Frank J. MANGUM |
| Court | Georgia Court of Appeals |
Whelchel, Dunlap & Gignilliat, Weymon H. Forrester, Gainesville, for appellant.
Palmour, Palmour & Lawson, James E. Palmour, III, Gainesville, for appellee.
Syllabus Opinion by the Court
Frank J. Mangum brought suit against Harold B. Conner seeking damages for injuries which he received when he was struck by Conner's car, Mangum being a pedestrian. The evidence disclosed that Mangum and a friend had been out on Lake Lanier fishing during the afternoon, and between them they had consumed a fifth of wine, Mangum estimating that he had consumed a pint of it. After returning to town he went to a package store on Industrial Boulevard in Gainsville for purchasing more wine. The proprietor refused to sell to him because of his apparent condition and he left the store and walked out into the street, intending to cross it and return to his parked car. He testified that it was still light, but other witnesses testified that it was after sundown and dark; cars were traveling on the street with lights on, and traffic on Industrial Boulevard, having one lane for traffic east and one for traffic west, was heavy.
Conner, his wife and his brother-in-law and a small grandchild were riding in his car. All of the adults testified that they had left Conner's office, gone with the brother-in-law to look at some building lots, and were then taking him to his place of employment in town to get his car. All testified that suddenly the car struck something which, coming up on the hood of the car to the windshield, appeared to be a man and turned out to be Mangum. All testified that they were looking ahead and had not previously seen the man. Mr. Conner was driving his car. His lights were on. His brakes were in working order and when he struck Mangum he instantaneously applied the brakes and brought the car to a stop. An ambulance was called and Mangum was sent to the hospital. Conner directed traffic until the police arrived, and he informed them what had happened and then went to the hospital to see whether there was anything he could do for Mangum.
The occurrence was on December 11, 1970, and on December 23 he gave a written statement to his liability insurance carrier, which had been drafted by the adjuster, in which Conner was quoted as saying that he had not seen Mr. Mangum until he possibly caught a glimpse of him On the trial Mr. Conner testified that it happened This testimony was corroborated by that of Mrs. Conner and Mike Gravitt, his brother-in-law, each of whom testified that he or she had not seen Mangum until his face came up into the windshield. All testified that traffic with lights on was moving heavily in both directions and that Conner had not passed any sort of vehicle since before turning onto the Industrial Boulevard. Mr. Mangum was dressed in brown trousers and a yellow shirt. He was not in a crosswalk, but had walked out into the street at a point in front of the package store a short distance from the nearest intersection.
Mr. Mangum testified that he came out in front of a car parked parallel with the sidewalk and while in front of it had looked in both directions and saw no traffic approaching and then walked on out into the street. He never saw the Conner car and did not know it was approaching until it struck him.
Mangum testified that he had drunk no alcohol during the day except the wine which he and his friend consumed out at the lake. The Conners and Gravitt testified that none of them had had anything alcoholic to drink that day. There was no contrary evidence as to that. All testified that he was driving at a speed of from 15 to 20 miles per hour when the car struck Mangum, and that he had been driving at the same speed for some distance back; traffic conditions had required it.
The case was tried before a jury which, after consideration of the evidence and the charge returned a verdict: 'We the jury find equal negligence of both parties, but with circumstances in favor of the plaintiff in the amount of $10,000.' The judge refused to receive the verdict because of its inconsistency, explained this to the jury and sent them out for further consideration. Another verdict was then returned simply awarding $10,000 to the plaintiff.
Defendant moved for new trial, amended it, and the motion as amended was denied. This appeal followed, enumerating error (1) on the denial of the motion, (2) the refusal of the court to accept and publish the first verdict and enter judgment for the defendant thereon, (3) charging that a motorist is bound to anticipate that on a public street or highway other persons having equal rights with motorists may be there, (4) charging that if the jury should find that plaintiff's injuries resulted from the defendant's failure to control his speed so as to avoid the collision it would constitute negligence per se, authorizing a verdict for the plaintiff, (5) a charge on comparative negligence given on plaintiff's request, and (7) charging on the doctrine of last clear chance. Held:
1. Appellant's argument in support of the general grounds stems from the first verdict that the jury sought to return, but which the court did not receive. If that verdict had been received and published there would be merit in it. But since it was not, and since implicit in the verdict which was received and published is a finding that the negligence of the defendant exceeded that of the plaintiff, and since this court is authorized only to review errors of law which may have occurred below, we find no reversible error in the general grounds.
2. When the jury returns a verdict which is obviously conflicting, it is proper for the judge to explain the conflict to the jury and send them back for further consideration; it is not required that he receive and publish it. Smith v. Pilcher, 130 Ga. 350(1), 60 S.E. 1000. With the conflicting findings appearing the judge was fully authorized to use his power of supervising the trial in trying to get a verdict which would be without conflict and would be the product of the jury.
3. The court charged: '. . . the driver of an automobile is bound to use reasonable care, and to...
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