Donahoo v. Goldin

• Decision Date: 06 March 1940
• Docket Number: 27959.
• Citation: 7 S.E.2d 820,61 Ga.App. 841
• Parties: DONAHOO v. GOLDIN.
• Court: Georgia Court of Appeals

7 S.E.2d 820

61 Ga.App. 841

DONAHOO v. GOLDIN.

No. 27959.

Court of Appeals of Georgia, Division No. 1.

March 6, 1940

[Copyrighted Material Omitted]

Claude V. Driver, of Bremen, and Willis Smith, of Carrollton, for plaintiff in error.

Edwards & Edwards, of Buchanan, for defendant in error.

MacINTYRE Judge.

Ground 1 of the amended motion for new trial complains of the following charge to the jury: "I have been requested to charge you, gentlemen of the jury, and I do charge you the law with reference to the operation of motor vehicles upon the highway, so far as the court thinks it is applicable to this case. Every owner or operator of a machine should have equal rights upon the highway with all other users of such highways, observing the rules promulgated and provided by law. No person shall operate a motor vehicle upon any public street or highway at a speed greater than is reasonable and safe having due regard to the width, grade, character traffic and use of such street or highway, nor so as to endanger life or limb or property in any respect whatsoever and such speed shall not exceed that tabulated below. The plaintiff alleges that she was riding in a truck, and this section provides that trucks, where the total gross combined weight of the motor vehicle and load in pounds is between ten thousand and sixteen thousand, if it has metallic wheels the speed is eight miles per hour; solid tires, twenty miles per hour, and pneumatic tires twenty-five. Over sixteen thousand pounds gross combined weight of motor vehicle and load, metallic tires five miles, solid tires eighteen miles, pneumatic tires twenty miles. Those are the speed limits fixed by law on those vehicles. I don't remember what the weight of this vehicle and load is, you will remember that, and you will apply this law according to this weight, the vehicle and the load."

Special ground 2 complains of the following excerpt from the charge: "Every motor vehicle, tractor, and motorcycle, while in use or operation on the streets or highways, shall at all times be provided and equipped with efficient and serviceable brakes, and a signaling device consisting of horn, bell, or other suitable device for producing an abrupt warning signal. Every motor vehicle using the highways at night shall be equipped with a lamp clearly visible for a distance of not less than one hundred feet from front to rear. That applies to both parties, or any party or parties using the highway at night."

Special ground 3 of the motion for new trial complains of that part of the following excerpt from the charge which is in brackets: "Plaintiff alleges that she was a guest in the car with the driver, that she had nothing to do with the control of it. In such cases, gentlemen of the jury, I charge you that the negligence of the driver is not imputable to the guest, but if the negligence of the driver is the contributing and proximate cause of her injuries and damages then she can not recover. If you find there was negligence on the part of the driver, and negligence of the defendant that concurred, and the negligence of the two contributed to and was the proximate cause of her injuries, then she would be entitled to recover. [I charge you that if the plaintiff, by ordinary care, could have avoided the consequences to herself caused by the defendant's negligence, she is not entitled to recover. You look to all the evidence that has been produced to you, that the court has permitted to come to your consideration, and examine as carefully as you see proper the place where the accident occurred, consider the evidence of all parties as to where it happened, the surroundings and what the defendant did, and whether or not the defendant exercised ordinary care in removing the car from the highway, that is, as much so as he could, exercise ordinary care in the management and movement of his car. You will also consider all the testimony with reference to how fast the plaintiff [host] was driving, or how slow, and whether or not he had his lights on. He alleges that he did; he alleges that he observed all the rules of the road, and you...