Etheridge v. Guest
| Citation | 12 S.E.2d 483,63 Ga.App. 637 |
| Decision Date | 14 November 1940 |
| Docket Number | 28369. |
| Parties | ETHERIDGE v. GUEST. |
| Court | United States Court of Appeals (Georgia) |
T J. Lewis, of Atlanta, for plaintiff in error.
John M. Slaton and James J. Slaton, both of Atlanta, for defendant in error.
L. E Etheridge brought suit against Jack Guest to recover damages for injuries sustained in an automobile collision. It was alleged that while the plaintiff was driving an automobile along the public highway between Dacula, Ga., and Winder Ga., on the night of November 26, 1938, and was on the right-hand side of the road, traveling at about thirty miles an hour, his automobile was run into by the automobile of the defendant while being operated by the latter's agent and servant at the unlawful rate of fifty miles an hour, and that the plaintiff was thereby injured and damaged in described particulars; that the defendant's car was being driven on the left-hand side of the road in violation of the law of Georgia and came into view suddenly and without any warning to plaintiff. It was alleged that the defendant was negligent in operating the said automobile on the left-hand side of the highway and in driving the same into the car in which the plaintiff was riding; in operating it at a high, rapid, and unlawful rate of speed in violation of the law of Georgia; in failing to have it under control as he approached the top of the hill down which the plaintiff was descending and in not stopping the same, and in driving the automobile into the car occupied by the plaintiff.
The defendant filed an answer denying the substantial allegations of the petition, and by cross-action sought to recover damages from the plaintiff, alleging that at the time and place the said Etheridge was driving his car at fifty miles an hour, zigzagging across the highway, and ran into the automobile being operated by the defendant's agent, injuring and damaging the defendant and his car in respects set forth; that the said Etheridge was intoxicated and driving without a license from the State, and while intoxicated and zigzagging on the public highway and finally striking the defendant's automobile, and that he was violating the law of this State in driving on the wrong side of the road at a speed of fifty miles an hour. The jury returned a verdict for the defendant, but without awarding him any damages on the cross-action, and judgment was entered accordingly. The exception here is to the judgment overruling the plaintiff Etheridge's motion for new trial.
1. The evidence in the case was voluminous and conflicting, but from it the jury was authorized to return the verdict in favor of the defendant. While the plaintiff, corroborated by his companion in the car with him, testified that he was driving on the right-hand side of the highway at about thirty miles an hour, and that the defendant's car, being driven by another at his request (as shown by the evidence), and following several cars, suddenly turned out from the line of traffic, throwing the lights of the car into the face of the plaintiff, and ran into his automobile before the plaintiff could avoid it, there was testimony on behalf of the defendant which authorized the jury to find the following: that the plaintiff was driving down a slight incline in the middle of the highway, just before the collision, between 8 and 9 o'clock at night; that upon the approach of the defendant's automobile from the other direction the plaintiff sought to drive his car to its proper position on the right-hand side of the highway but went too far on the right shoulder of the road, and in attempting to pull back to a proper position on the highway, and striking a concrete drain on the edge thereof, drove his car or allowed it to pass beyond the center of the highway, striking the defendant's automobile on its left front side and knocking it against the guard rail on the defendant's side of the road. There was testimony on behalf of the defendant that his car was at all times on its right-hand side of the road, and that it was found shortly after the collision with its right wheels against or straddling the guard rail and tilted slightly to the left. Its left front and the left front of the plaintiff's car were damaged. There was testimony as to certain physical facts, such as skid marks which were attributed to the passing of the plaintiff's car from the right side of the road beyond the center line, and it was testified by a witness for the defendant, a mechanic, who reached the scene shortly after the collision, that the rear end of the motor in the plaintiff's car had become dislodged, that it had, according to a mark made on the pavement, struck the pavement at a point about two feet from the center of the highway on the plaintiff's side of the road, leaving a line parallel to the other skid marks mentioned, that the front of the car being from five to six feet from the rear end of the motor it had necessarily extended beyond the center line of the highway at the time of the collision if the car cut across the highway diagonally. Because of the physical evidence above mentioned it is contended by the defendant in error that the testimony of the plaintiff and his companion that the plaintiff's car never left the right-hand side of the highway, but that the defendant's car came over to his side and crashed into the plaintiff's car, should be disregarded. While this court can not say that the physical facts demand a finding as a matter of law that the plaintiff's car passed beyond the center line of the highway, they are consistent with the direct testimony of the defendant's witnesses that it did crash into the defendant's automobile while it was traveling on its proper side. It would require unnecessary and unprofitable elaboration to reinforce our conclusion by a detailed analysis of the facts adduced at the trial, and about which much argument is made in the respective briefs of counsel, and we think that what is said above is sufficient to demonstrate that the verdict of the jury was authorized, and that the court did not err in overruling the general grounds of the plaintiff's motion for new trial.
2. The first special ground of the motion for new trial complains that the court erred in charging the jury that it was unlawful to operate an automobile upon the highways without a driver's license, and that if the plaintiff was so operating his car at the time of the collision it would be negligence per se, and that the charge was given in such a way as to be applicable as part of the law of the whole case, including the plaintiff's action, inasmuch as the court charged the jury that the plaintiff could not recover if guilty of negligence equal to or greater than that of the defendant and because the court did not charge that the alleged negligence could not be considered unless there was some causal connection between it and the injury. The majority opinion of the court in respect to this special ground, and from which I dissent for reasons shown in my dissenting opinion, is as follows: Before an act can be considered as negligence it must be in violation of some duty owing under the circumstances by the person committing the act to another person, and, in its nature, must be capable of having a causal connection between it and the damage or injury inflicted upon the other person. An act prohibited by a penal statute, and which might be negligence as a matter of law, is not negligence unless its commission is in violation of some duty owing under the circumstances by the person committing the act to another person and is capable of having a causal connection with the injury inflicted. See 45 C.J. 631, 720. A violation by a person of the driver's license law, in operating a motor vehicle along a public highway without having obtained a driver's license as required by law, is in violation of no duty owing by such person to another person on the highway; and such an act can have no causal connection with an injury or damage sustained by the other person. Such act does not, as against the person injured, constitute negligence either in fact or in law. The court in the case now under consideration charged the jury that if the plaintiff was operating his automobile along the public highway without having obtained the required driver's license the plaintiff in so doing was guilty of negligence per se. The plaintiff owed no duty to the defendant under the circumstances not to operate his automobile without having obtained the required driver's license, and such act could not have any causal connection with the injury. Although the defendant had filed a cross-action against the...
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