Ellison v. Robinson
| Decision Date | 21 January 1958 |
| Docket Number | No. 36934,No. 1,36934,1 |
| Citation | 96 Ga.App. 882,101 S.E.2d 902 |
| Parties | W. R. ELLISON v. R. R. ROBINSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The petition set forth a cause of action and the trial judge was correct in overruling the general demurrer.
2. The evidence did not demand a verdict for the defendant, and the general grounds of the motion for a new trial are without merit.
3. It was error for the judge to instruct the jury as to a contention of the plaintiff which had been stricken from the petition and as to which no evidence was introduced.
4. The judge erred in charging the jury as to an issue which was neither supported by the pleadings nor the evidence.
5. There being no evidence that the plaintiff was closely following the defendant's truck, it was not error for the judge to refuse to charge Code, § 68-1641.
6. Special ground 4 is without merit.
7. It was not error to refuse to allow counsel to examine a private memorandum which a witness used to refresh his memory.
Robert R. Robinson Filed a suit for damages against W. Ray Ellison, d/b/a Ellison Milling Company.
The petition alleged in part: that on February 10, 1955, at approximately 5:20 a. m., the plaintiff was driving east along State Highway No. 6 in Polk County, Georgia, and it was during the hours of darkness; that the plaintiff was driving a 1954 Dodge Coronet and was driving at the approximate speed of 40 miles per hour; that at said time and place there was a considerable amount of fog on the road and in the area inhich the plaintiff was driving; that a 1949 Mack truck-tractor with semi-trailer attached, owned by the defendant, was being driven in an easterly direction along State Highway No. 6 by Robert Banks, Jr.; that the trucktractor and trailer was a diesel driven vehicle and was making a lot of smoke, which added to the opaqueness of the fog; that the vehicle driven by the defendant's agent was heavily loaded with grain; that the plaintiff approached the vehicle from the rear at the time and place, and the defendant's vehicle stalled and stopped along the highway without warning or signal; that the vehicle driven by defendant's agent was not equipped with any tail light or lights on the rear of the trailer in any respect whatsoever; that the plaintiff collided with the rear end of the trailer, causing the plaintiff damages; that the truck-tractor did not stop to render aid to the plaintiff, but, having revived his motor, proceeded along the highway in an easterly direction; that as a result of the collision the automobile was severely damages and wrecked; that at said time and place Robert Banks, Jr., was the agent and servant of the defendant, W. Roy Ellison, in that W. Roy Ellison is in the business of milling and processing of grain and grain products; that the defendant's agent, Robert Banks, Jr., was at the time and place driving the 1949 Mack truck-tractor and trailer as a truck driver for the defendant, W. Roy Ellison, and was at the time and place within the scope of his employment in driving the truck-tractor and trailer; that the proximate cause of the accident was the negligence of the defendant, W. Roy Ellison, through the agent, Robert Banks, Jr., in the following particulars to wit: the defendant was negligent through his agent, in driving the truck-tractor and trailer along the highway without proper operating signal device and running lights and without any tail light or warning light in the rear of the vehicle during the hours of darkness, contrary to the laws of Georgia, the same being negligence per se; in stopping the vehicle on the highway without giving any warning signal, contrary to the laws of Georgia, the same being negligence per se.
The defendant filed an answer in which he denied the material allegations of the petition and further alleged: that if the plaintiff collided with the rear end of his trailer, the collision resulted from the plaintiff's negligence, the plaintiff being negligent in the following particulars: in driving his vehicle at a speed greater than was reasonable and prudent under the conditions existing, in violation of Georgia Code (Ann.) § 68-1626, the same being negligence per se; in failing to keep a proper lookout ahead so as to enable him to avoid striking the rear of the defendant's vehicle; in following the defendant's vehicle more closely than was reasonable and prudent having due regard to the slow speed of the defendant's vehicle and the condition of the highway, in violation of Georgia Code, § 68-1641, the same being negligence per se.
The defendant's general demurrer to the petition was overruled.
On the trial the jury returned a verdict for the plaintiff. The defendant filed a motion for new trial which was denied. Exception is taken to the overruling of the general demurrer and the denial of the motion for new trial.
Dudley B. Magruder, Jr., Wright, Rogers, Magruder & Hoyt, Rome, for plaintiff in error.
J. M. Grubbs, Jr., Marietta, Parker, Clary, Kent & Grubbs, Rome, for defendant in error.
1. The defendant insists that the petition shows on its face that the plaintiff in driving 40 miles per hour in a considerable amount of fog did not exercise reasonable care for his own safety, and the trial judge erred in overruling the general demurrer. The defendant cites Reid v. Southern Ry. Co., 52 Ga.App. 508, 183 S.E. 849, as authority for this contention. It will be noted in the above case that the petition alleged that the driver's vision was completely obscured. In the present case the petition alleged that there was a considerable amount of fog and the truck was emitting a lot of smoke, but it is not alleged that the plaintiff could not see the road in front of him. Under the ruling in Bach v. Bragg Bros. & Blackwell, Inc., 53 Ga.App. 574, 186 S.E. 711, a case very similar to the present one, the petition set forth a cause of action and the judge did not err in overruling the general demurrer.
2. The general grounds of the motion for new trial insist that the evidence demanded a verdict for the defendant because: the plaintiff was driving 40 miles per hour through an area of fog; the diesel smoke was present which would indicate to the plaintiff the presence of another vehicle ahead; the plaintiff never saw the defendant's truck until the time of the collision.
The plaintiff testified in part that: on the day of the collision he was on his way to work; it got hazy and he slowed up and put his foot on the brakes; he was traveling at 50 miles per hour prior to running into the hazy area and as he entered it he slowed down to 40 miles per hour; the truck was either stopped or traveling at five miles per hour, he could not tell for sure; there were no tail lights shining when the automobile hit the rear of the truck; he did not see the truck until the time of the collision.
Paul Robinson testified in part that: he was a...
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