Gahring v. Barron

• Decision Date: 24 September 1963
• Docket Number: No. 1,No. 40310,40310,1
• Citation: 108 Ga.App. 530,133 S.E.2d 389
• Parties: John W. GAHRING v. Mable BARRON
• Court: Georgia Court of Appeals

Page 389

133 S.E.2d 389

108 Ga.App. 530

John W. GAHRING v. Mable BARRON.

No. 40310.

Court of Appeals of Georgia, Division No. 1.

Sept. 24, 1963.

Rehearing Denined Oct. 22, 1963.

Syllabus by the Court

1. Evidence sufficient to support an allegation of negligence per se in entering a highway from a private road or driveway must include evidence that the place in question is in fact under private ownership.

2. A plaintiff who has suffered subsequent additional injuries to those for which he sues arising from other similar mishaps may be cross examined on the subject for the purpose of determining what part of his injuries resulted from the defendant's alleged tort and what part from other causes, and theoretically the ruling of the trial court to this effect was not error. Where, however, it appears that a lengthy cross examination of subsequent collisions was allowed to be used as a vehicle to place before the jury evidence of the plaintiff's negligence in unrelated situations, the testimony ceased to perform its original function and became irrelevant and prejudicial by reason of its violation of the 'other transactions' rule.

3. Where the court charges on the rule of comparative negligence he should instruct the jury that the equal or preponderating negligence of the plaintiff which will defeat recovery must be a part of the proximate cause of the injury sustained.

4. The general grounds of the motion for a new trial are without merit.

John Gahring brought an action for damages against Mable Barron in the City Court of Columbus, Georgia, for injuries resulting from a collision in August, 1961, between his motorcycle and an automobile being driven by the defendant. Following an adverse verdict he filed his motion for a new trial, the denial of which is assigned as error.

L. B. Kent, Columbus, for plaintiff is error.

Hatcher, Stubbs, Land & Rothschild, A. J. Land, Columbus, for defendant in error.

RUSSELL, Judge.

1. Among other allegations of negligence, the plaintiff charged the defendant with a violation of Code Ann. § 68-1653 which provides: 'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.' Code Ann. § 68-1504(1)(b) defines a private road or driveway for purposes of the act in question (Ga.L.1953, Nov.Sess., pp. 556, 561) as follows: 'Every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons.' The question is whether the plaintiff proved that the defendant entered the main thoroughfare, Victorty Drive in Columbus, Georgia, from such a location. The plaintiff referred to the car 'swinging out on the highway * * * the automobile that came into the street * * * I saw Mrs. Barron come onto the pavement * * * she pulled into Victory Drive.' The defendant testified: 'There's a driveway before you get to Ideal Laundry * * *. The unpaved roadway between the pavement and the Ideal Laundry and the radio shop is more than the length of a car, I'd say 5 or 6 feet deeper in there between the buildings and the highway. [The car] was parked headed in toward the radio shop, I backed it up parallel to the road before I pulled onto the road.' Her son testified: 'I parked in front of the radio shop at an angle * * *. When mother got in the car, she backed up and went forward and pulled into the road * * * she was about 20 feet from Elvan Avenue. I'm not sure in reference to the pavement on the south side of Victory Drive. The best estimate I can give was 10 feet. Mother pulled forward and started going into the lane of traffic.' There is no testimony as to whether the unpaved roadway in front of the radio shop where the automobile had been parked was privately owned or was a part of the unpaved right of way of Victory Drive. Under these circumstances the evidence did not support the allegation that plaintiff entered the traffic lane from a private driveway, and the court properly refused to instruct the jury as to the law regarding this allegation of negligence.

2. 'It is the general rule that in a suit for negligence evidence of similar acts or omissions on other and different occasions is not admissible.' Hollomon v. Hopson, 45 Ga.App. 762, 765(8), 166 S.E. 45, 47; Hawkins v. Benton Rapid Express, 82 Ga.App. 819, 828, 62 S.E.2d 612; Williams v. Slusser, 104 Ga.App. 412(5), 121 S.E.2d 796; Bazemore v. Powell, 54 Ga.App. 444, 188 S.E. 282; Cox v. Norris, 70 Ga.App. 580, 583, 28 S.E.2d 888: These cases and others cited therein stand for the general proposition that with some rare exceptions each negligence case must be decided with reference to the particular transaction and no other, and that to give the jury facts regarding previous or subsequent similar occurrences from which they may infer that the plaintiff or the defendant has been negligent in the same manner on other occasions is both irrelevant and prejudicial. All of these cases relate to the introduction of testimony of collisions or mishaps similar to the one on trial where the pleadings contain no special allegation which would make the other transaction relevant on the issue of habit, custom, or character. In this instance it appears that the plaintiff had two other motorcycle collisions shortly after the one on which this action was brought. We have no quarrel with the general tenor of the ruling of the trial court, which was to recognize the rule here stated and also that evidence of other injuries received by the plaintiff shortly after this collision was relevant to the damages sustained, and that the defendant might offer proof that the pain and suffering claimed by the plaintiff were due wholly or partly to other causes with which the defendant had no connection. Admittedly, the line of...