Cruse v. Taylor
| Decision Date | 09 February 1954 |
| Docket Number | No. 34957,No. 2,34957,2 |
| Citation | 80 S.E.2d 704,89 Ga.App. 611 |
| Parties | CRUSE et al. v. TAYLOR |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) A request to charge should itself be correct and even perfect; otherwise the refusal to give it will not be cause for a new trial.
(b) When it appears, on the trial of a personal injury action resulting from improper functioning of defendant's automobile, that its operation under such conditions and in the absence of a valid defense constitutes a violation of a statute or ordinance, this prima facie establishes negligence per se. It then devolves upon the defendant to produce evidence in his own behalf to satisfy the jury that the operation of the automobile was not a violation of a statute or ordinance because unintentional and not the result of any failure to exercise ordinary care on his part.
2. The court did not err in submitting to the jury certain allegations of the petition relative to common-law negligence, there being evidence to support such allegations.
3. (a) There was sufficient evidence to support a charge to the jury that the defendant owner of the automobile, who turned the vehicle over to another to drive, would be liable for injuries resulting from the defective performance and operation thereof if, in the exercise of ordinary care, he should have known of the deficiency in its mechanism.
(b) It was not error to charge the contentions of the plaintiff that the defendant owner turned his automobile over to another to drive when he knew that the emergency handbrake was unserviceable, as this contention was relevant to the plaintiff's case, and was supported by evidence.
4. Under the circumstances herein set out, it was proper for the court to give in charge to the jury the principles of law relative to the family-car doctrine.
5. The verdict was supported by the evidence, and, having the approval of the trial court, will not be disturbed.
Mrs. Prentice H. Taylor filed suit in the Superior Court of Fulton County for damages from injuries resulting to her when an automobile owner by the defendant Eugene Jones, Jr., and driven by his sister and codefendant, Mrs. Thelma L. Cruse, struck a motorcycle and knocked it into her as she was crossing the street on foot, the automobile thereafter running over her body. The evidence on the trial of the case was substantially as follows: that the defendant Jones, with his father, mother, and a young son of his sister, Mrs. Cruse, lived in one house belonging to his father, and Mr. and Mrs. Cruse lived in another on the same premises also belonging to his father; that the Cruses, the father, and he each owned an automobile, and by mutual understanding all automobiles were kept for the pleasure and convenience of all of them, and they traded cars as they wished without consulting each other; that, on the day in question Mrs. Cruse brought the father to Atlanta, using the automobile belonging to Jones, Jr.; that Jones had bought this car about two months previously, it being a 1947 Nash; that before purchase it was put on a rack, and he, from his limited knowledge, looked underneath but saw nothing wrong with it; that a mechanic who inspected it at the same time also found nothing wrong with it; that the hydraulic brakes functioned perfectly, but the hand brake was 'not too good'; that on January 5, 1952, Mrs. Cruse drove the automobile from Red Oak to Atlanta; that she used the foot brakes several times on the trip and they were in good working order; that she placed the car in a garage and, when she went back to take it out, rolled down the ramp without having occasion to try the brakes; that she turned into the street and approached an intersection where the red light was against her and a police officer on a motorcycle immediately ahead of her was parked waiting for the light to change; that she then applied her brakes and they did not respond in any degree; that she did not try the emergency brake; that the automobile then rolled out into the intersection, picking up speed, hit the police officer, knocking him off the motorcycle, and ran over the plaintiff after she had been knocked down by the motorcycle. A section of the hydraulic-brake line running to the left front wheel was introduced in evidence, and opinion evidence was offered to the effect that a hole in this piece of hose was caused by its rubbing against some other part of the apparatus for a period of time--how long the witness could not say, but that the hole wore through just at the moment the brakes were applied, allowing the hydraulic fluid to escape, with the result that they had no pressure and ceased to function. Another witness testified to finding a puddle of hydraulic brake fluid at the scene of the collision. A witness who was proceeding down the street behind Mrs. Cruse testified to watching the car because, as it neared the intersection, it appeared to pick up speed rather than slow down as it should have for the traffic light; and, from the speed of the car and manner in which it was proceeding toward the intersection, she 'knew something was going to happen.' The plaintiff also proved the extent of her injuries.
The jury returned a verdict for the plaintiff against the defendants jointly. A motion for new trial was filed on the general grounds and amended by adding 8 special grounds, and the overruling of this motion is assigned as error.
T. J. Long, Atlanta, for plaintiffs in error.
Durwood T. Pye, Atlanta, for defendant in error.
1. Special ground 4 of the amended motion for new trial complains of a lengthy excerpt from the charge of the court as to the violation of certain ordinances of the City of Atlanta relating to traffic-control devices; Code, § 68-302 providing that every motor vehicle while in use or operation upon the streets or highways shall at all times be provided and equipped with efficient and serviceable brakes; Code, § 68-301(a) prohibiting driving at a rate of speed greater than is reasonable and safe and so as to endanger the life or safety of others; Code § 68-303(i) providing that an operator shall reduce speed at crossings or intersections of highways; and Code, § 68-304 providing that, upon approaching or passing any person walking in the roadway, the operator of a motor vehicle shall at all times have the same under immediate control. It is contended that it was error to submit the violation of the statutes and ordinances to the jury because the undisputed evidence in the case shows that any violation thereof was due to a sudden mechanical failure of the brakes 'as to which the operator and/or owner thereof had no knowledge or knowledge of facts or circumstances requiring an inspection to determine defects in the braking system,' and is therefore contended not to be negligence. Special ground 5 assigns error on the refusal to give the following requested charge: 'If you find that the defendant, Mrs. Cruse, violated the ordinances and laws complained of in this suit and that said violation was due to a sudden failure of brakes and to defective brakes as to which she had no actual knowledge; then, in that event, the violation of said ordinances and laws would constitute no negligence at all.'
'A request to charge should itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.' Smithwick v. State, 199 Ga. 292(7), 34 S.E.2d 28, 30. The requested charge in effect states that, even though these statutes and ordinances were 'violated,' the violation would constitute 'no negligence at all' in the absence of actual knowledge that the brakes were defective. Either an intentional failure or a negligent omission to observe a statute or ordinance will constitute a violation thereof. Railway Express Agency v. Standridge, 68 Ga.App. 836, 839, 24 S.E.2d 504. Obviously then, if there were no intent and no negligence, there would be no violation and a perfect defense would be presented against a direct charge of violating the statute or ordinance. Where it is made to appear that the thing that happened would be a violation if done intentionally or if done negligently, and the evidence does not demand a finding that it was not done intentionally or negligently, this constitutes the establishment prima facie of negligence per se. It then devolves upon the defendant to produce evidence in his own behalf to satisfy the jury that the operation of the automobile was not a violation of a statute or ordinance because unintentional and not the result of any failure to exercise ordinary care on his part. Thus, if there is a violation of a statute or ordinance proximately resulting in injury, it is proper for the court to charge on negligence per se. Conversly, if there is no violation, such a charge is improper. The question of...
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...The ground shows that a timely written request invoking the quoted instructions was presented. The rule is stated in Cruse v. Taylor, 89 Ga.App. 611, 80 S.E.2d 704; and Smithwick v. State, 199 Ga. 292, 293(7), 34 S.E.2d 28, that a request to charge must be correct, even perfect. One of the ......
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