Draffin v. Massey, 36008

• Decision Date: 20 January 1956
• Docket Number: No. 36008,No. 2,36008,2
• Parties: Bertha S. DRAFFIN v. Mae MASSEY
• Court: Georgia Court of Appeals

Page 38

92 S.E.2d 38

93 Ga.App. 329

Bertha S. DRAFFIN v. Mae MASSEY.

No. 36008.

Court of Appeals of Georgia, Division No. 2.

Jan. 20, 1956.

Rehearing Denied Feb. 3, 1956.

Syllabus by the Court.

1. It was not error for the trial court to fail to charge the substance of the doctrine of last clear chance for the reasons set forth in the corresponding division of the opinion.

2. The testimony of a witness as to pertinent facts within his knowledge is the highest and best evidence of such facts, and not a report made by him from previous notes and memoranda, with which report he refreshed his recollection in connection with the testimony. Accordingly, it was not error for the trial court here to exclude from the evidence a report prepared by the witness, who himself testified as to the facts involved.

3. There being no evidence in the record that the deceased husband of the plaintiff in any way violated the stock law, the trial court erred in admitting over timely objection a document showing such law to be of force in the county where the homicide occurred, and also erred in charging this law to the jury.

4. Where photographs are offered in evidence which were taken some time after the transaction, there should be testimony that the conditions reflected by them are a true likeness of the same as of the time of the transaction.

Mrs. Bertha S. Draffin filed against Mae Massey an action for damages in the Superior Court of Thomas County for the death of her husband. The petition as amended alleged at about 8:30 a. m., the plaintiff's husband was standing on his private property on the west side of the Cairo-Camilla highway; that the defendant was traveling north on the east side of the highway; that as the defendant approached there was approaching the highway from the west side a milch cow which the plaintiff's husband had turned out of a field for the purpose of taking it across the highway to be milked; that although the defendant saw or should in the exercise of ordinary care have seen the cow, she failed to reduce speed and bring her automobile under control; that the cow entered the highway while the defendant was 150 feet away, opposite the point where the plaintiff's husband was standing; that the defendant became excited and in a panic, slammed on her brakes and, in an effort to dodge the cow, left the highway on the west or left side of the road and ran over the plaintiff's husband, causing his death. The defendant answered, alleging that the negligence of the decedent was equal to or greater than her own in that he was allowing his cow or cows to run at large in violation of the 'no fence' law, Code, § 62-601, Thomas County being a county which has adopted the stock law as provided in Code Chapter 62-5 and in not controlling its movements, and further that he could have avoided any injury to himself by the exercise of ordinary care for his own safety after the alleged negligence of the defendant was or should have been apparent to him. The trial resulted in a verdict for the defendant. The plaintiff made her motion for a new trial on the general grounds and later amended it by the addition of 4 special grounds. The overruling of this motion is assigned as error.

DeLoache, Gibson & Gardner, Moultrie, Forester & Calhoun, Thomasville, for plaintiff in error.

Cain & Smith, Cairo, Alexander, Vann & Lilly, Thomasville, for defendant in error.

TOWNSEND, Judge.

1. The facts of this case are largely undisputed. The plaintiff's husband, with another, crossed the highway from his house and barn to look after the cattle which were enclosed on the west side of the road, he having the intention of taking the cow across to his barn to be milked, that while the other man was a short distance away and he was standing near the road with 3 grandchildren the cow started to cross the highway toward the barn; that the defendant and the persons in her car first saw the cow when the automobile was about 150 feet down the road; that she was traveling between 50 and 60 miles an hour and the cow, when seen, was either standing or walking very slowly; that the road was straight and almost level for a half mile to a mile south of this point; that when the defendant saw the cow 150 feet away she slammed on her brakes and the car skidded and, according to her testimony, her attention from then on was devoted to keeping it from overturning; that the automobile traveled across the center line and left side of the road; left the pavement, traveling 133 feet on the pavement and 66 feet on the dirt, hit a tree, traveled another 25 feet and hit another tree and came to rest. In the course of this action it also crossed a ditch and ran over the plaintiff's husband, who had attempted to run out of the way and was, at the moment of impact, located 19 or 20 feet from the highway on the west side of the road and beyond the ditch. The cow was not struck.

Under these circumstances it was no error, as contended in the first special ground of the amended motion for a new trial, for the court to fail to charge substantially the following principle of law: 'The laws of this State recognize a doctrine which is known as the doctrine of the last clear chance. This doctrine means that even though a person's own acts may have placed him in a position of peril, yet if another acts or omits to act with knowledge of the peril and injuries result, the injured person would be entitled to recover.' Such a charge would not have been adjusted to the pleadings or evidence in the case. A man standing across a ditch 20 feet from a highway is not in a 'position of peril' so long as an automobile remains upon the highway, and the evidence here shows that the car did not leave the highway until after it had skidded and almost upset due to the manner in which the brakes were applied, and that after this occurred the plaintiff had no control over the car, so that, as it bounced over the ditch and upon...