Everett v. Clegg
| Decision Date | 19 November 1956 |
| Docket Number | 36333,No. 2,Nos. 36332,s. 36332,2 |
| Citation | 96 S.E.2d 382,94 Ga.App. 725 |
| Parties | C. H. EVERETT, Next Friend, etc., v. Mary G. CLEGG. C. H. EVERETT v. Mary G. CLEGG |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the general grounds of a motion for a new trial are not argued or generally insisted upon in the brief of counsel for the plaintiff in error and are not argued orally before this court, such grounds are to be treated as abandoned. Code, § 6-1308; Housing Authority of Savannah v. Savannah Iron & Wire Works, 91 Ga.App. 881, 87 S.E.2d 671.
2-4, 6-8. There is no merit in special grounds 1, 2, 3, 5, 6, 7, and 8 for the reasons stated in the opinion.
5. The expected profits of a commercial business are too uncertain, speculative and remote to permit a recovery for their loss, and where an issue as to such profits is raised by the evidence, the trial court does not err in instructing the jury that damages which are too remote may not be recovered.
9. Where, in the trial of an action for damages growing out of the alleged negligence of the defendant, the plaintiff alleges his own freedom from fault and the defendant's negligence, and the defendant pleads its freedom from fault, and alleges negligence on the part of the plaintiff, and there is evidence authorizing a finding that neither party was at fault, it is not error to instruct the jury upon the law applicable to accidental injury.
10. A ground of a motion for new trial which is expressly abandoned by counsel presents no question for determination by this court. Code, § 6-1308. Special ground 10 comes within this rule.
11. 'If a party obtains knowledge during the progress of a trial of acts of jurors, or acts affecting them, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered as having waived his objections.'
Clark H. Hverett, in his own behalf, and as next friend of his minor son, Parnick H. Everett, brought two actions for damages against Mary G. Clegg. Except for the difference in the elements of damage sought in the two cases, the material allegations of the two petitions are identical and substantially as follows: (3) At the times hereinafter mentioned, Board Street, in the City of Rome, Georgia, was, and still is, a public thoroughfare running in a general northerly and southerly direction, and by Schedule II of the Traffic Rules and Regulations of the City of Rome, in effect at the time complained of, was designated as a 'through street' from the Central of Georgia Railway to Ross Street. Seventh Avenue was, and still is, a public thoroughfare running in a general easterly and westerly direction and intersects Broad Street at a point between the Central of Georgia Railway and Ross Street. The westerly extension of Seventh Avenue is not in juxtaposition with the easterly part of that avenue, but is to the south of the easterly intersection. (4) On the date in question, there was in full force and effect an ordinance of the City of Rome, providing in part:
'Section 64. Through streets designated. Those streets and parts of streets described in Schedule II attached hereto and made a part hereof are hereby declared to be through streets for the purpose of this section.
'Section 65. Authority to erect stop signs. Whenever any ordinance of this city designates and describes a through street, it shall be the duty of the city traffic engineer to place and maintain a stop sign on each and every street intersecting that portion thereof described and designated as such by any ordinance of this city.
'Section 66. Intersections where stop required. The city traffic engineer is hereby authorized to determine and designate intersections where particular hazards exist upon other than through streets and to determine whether vehicles shall stop at one of more entrances to any such stop intersection, and shall erect a stop sign at every place where a stop is required.
'Section 67. Signs to bear the word 'stop.' every sign erected pursuant to this article shall bear the word 'Stop' in letters not less than six inches in height, and such sign at night time being rendered luminous by steady or flashing internal illumination, or by a fixed flood light projected on the face of the sign, or by efficient reflecting elements on the face of the sign. Every stop sign shall be located as near as practicable at the nearest line of the cross-walk on the near side of the intersection, or, if none, at the nearest line of the roadway.
In compliance with the authority contained in these sections of the ordinance, the City of Rome had, at the time complained of, erected a stop sign at the easterly intersection of Seventh Avenue and Broad Street facing toward Seventh Avenue so that traffic approaching Broad Street on Seventh Avenue was required to come to a stop before entering the intersection. (5) At 7:20 p.m. on November 2, 19558 Parnick H. Everett was driving a 1955 Harley-Davidson motorcycle in a northerly direction along Broad Street in the City of Rome. Just prior to the time in question, in stopped at Sixth Avenue in obedience to a traffic-control signal exhibiting a red light. When the traffic-control signal changed to green light, he started his motorcycle and was proceeding in the right-hand traffic lane of Broad Street at a speed of 20 miles per hour. (6) At the time in question, it was dark but clear and dry and the headlight of the motorcycle was burning on the dim position. Automobiles were parked along the right-hand curb of Broad Street. As he reached the intersection of Broad and Seventh Avenue, a 1953 Plymouth sedan, owned and operated by the defendant, was proceeding in a westerly direction on Seventh Avenue, and the defendant negligently failed to bring her automobile to a stop as she approached the intersection as required by the traffic ordinance quoted above, but, on the contrary, negligently drove past the stop sign and into Broad Street. (7) Parnick H. Everett could not see the automobile coming from the side street until it was about 17 feet away. There was not then sufficient time for him to stop before striking the automobile. He swerved his motorcycle to the right in an attempt to avoid the automobile, but it was impossible to do so and he struck the car at approximately the left rear door. The force of the impact knocked him over the automobile and onto the pavement. (8) The defendant was guilty of negligence per se in failing to stop her automobile as required by the ordinance of the City of Rome. She was further guilty of negligence in failing to keep a lookout ahead in the direction in which she was traveling and in failing to keep her automobile under control so that she could stop in time to avoid a collision with traffic on the through street. Parnick H. Everett sustained enumerated personal injuries including pain and suffering, and the plaintiff seeks to recover for such injuries the sum of $20,000 for and in behalf of his son. The plaintiff seeks to recover damages in his own behalf for medical expenses incurred for the care of his son, for damages to his motorcycle, and for the loss of his son's services, totaling $5,000.
Demurrers were filed to the petitions but no action was taken thereon by the trial court. In her answer to the action brought in behalf on the minor son, the defendant denied the allegations of the petition and alleged that the City of Rome, at the time complained of, had not, in compliance with the authority contained in the sections of the ordinance referred to in the petition, erected a stop sign at the easterly intersection of Seventh Avenue and Broad Street facing toward Seventh Avenue so that traffic approaching Board Street on Seventh Avenue was required to come to a stop before entering the intersection. She alleged further that she was not negligent; that the sole proximate cause of the alleged injuries and damages was Parnick H. Everett's failure to exercise ordinary care for his own safety; that he, in the exercise of ordinary care, could have discovered and avoided the consequences of any alleged negligence on the part of the defendant, and that his negligence at the time complained of was equal to, or greater than, the defendant's alleged negligence. In her answer to the action brought by the father, in addition to the allegations contained in her answer to the action brought in behalf of the minor son, and by way of cross-action, the defendant alleged that, at the time complained of, the motorcycle was furnished by the plaintiff to his son for his own convenience, comfort and pleasure as a member of the plaintiff's family; that the motorcycle was then being used by the son for family purposes; that he was, at the time complained of, operating the motorcycle at a speed of 35 miles per hour and did not have it under sufficient control to enable him to stop or turn it to one side in order to avoid a collision with the defendant's vehicle when he saw it; that, at such time and place, Parnick H. Everett was operating the motorcycle without keeping a lookout ahead and failed to see the defendant's vehicle in his path; that the plaintiff was guilty of negligence per se in that his son and agent: (a) Drove the motorcycle on the street at a speed greater than was reasonable and prudent under the conditions and having regard to the actual potential hazards then existing in violation of Code, § 68-1626(a). (b) Failed to control the speed of the motorcycle so as to...
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