Garmon v. Cassell

• Docket Number: 32299.
• Decision Date: 04 March 1949
• Citation: 52 S.E.2d 631,78 Ga.App. 730
• Parties: GARMON v. CASSELL.
• Court: Georgia Court of Appeals

52 S.E.2d 631

78 Ga.App. 730

GARMON v. CASSELL.

No. 32299.

Court of Appeals of Georgia, Division No. 1.

March 4, 1949

Syllabus by the Court

1. The evidence authorized the verdict and the court therefore did not err in overruling the general grounds of the motion for a new trial.

2. The charges of the court, quoted in division two of the opinion were not error for the reasons assigned.

(a) It is the duty of the operator of a motor vehicle on a highway to have the vehicle under immediate control not only when he is conscious of the presence of a pedestrian on a highway but also when he should discover the presence of such pedestrian by the exercise of ordinary care.

(b) The term 'immediate control' as used in Code, § 68-304 is not too vague, indefinite and uncertain to be enforced.

(c) The court did not err in not defining the term in the absence of a request.

3, 4 5. The assignments of error in grounds two, three, four five, and six of the amended motion for a new trial are without merit.

6. The word agent as used in Acts 1947, p. 568, amending Code § 38-1801 means any agent available to the party (principal) as a witness in a pending case and does not refer merely to an agent who has some relation or connection with the transaction in litigation. The assignment of error in ground seven is without merit for any reason assigned.

7. The court did not err in refusing to permit the defendant Garmon to cross examine an agent of defendant Hall who was put on the stand for the purposes of cross-examination by the plaintiff.

8. It was not error for the court not to apprise the jury of the fact that the defendant Garmon did not have insurance after the jury had been qualified as to the insurance carrier of the defendant Hall.

Mrs. John W. Cassell instituted this action for damages against Jesse T. Garmon and Charles M. Hall for the homicide of her husband, allegedly caused by the negligent operation of an automobile driven by Garmon and owned by codefendant Hall. The petition alleged substantially the following: That on December 6, 1947, at about 10 P.M., the deceased husband was returning home from his work as a railroad crossing watchman. While deceased was walking across Glenwood Avenue in the unmarked crosswalk at the corner of Cameron Street and Glenwood Avenue, Atlanta, Georgia, going from the northeastern corner to the southeastern corner of said intersection at a place where pedestrians cross Glenwood Avenue, defendant Garmon driving a 1947 Lincoln Sedan, belonging to defendant Hall came down Cameron Street, approaching deceased from the rear, and turned into Glenwood Avenue, striking deceased with said automobile, inflicting injuries which resulted in his death. That Garmon at the time of the injury was driving said car as the agent of Hall and was acting within the scope of his authority. That defendants were negligent in the following particulars and such negligence was the proximate cause of the death of deceased: (a) driving said automobile under the influence of intoxicating liquors in violation of city ordinance of Atlanta and in violation of State law, (b) driving said automobile in excess of 25 miles per hour in violation of city ordinance of Atlanta, (c) entered said intersection at excessive rate of speed charged to be in excess of 25 miles per hour, (d) failed to yield the right away to deceased as required by city ordinance, (e) failed to have said automobile under his immediate control, (f) failed to stop before entering said intersection, (g) failed to stop before turning into Glenwood Avenue, (h) failed to reduce speed before making said turn into Glenwood Avenue, (i) failed to give warning to deceased by sounding his horn. The petition specially pleaded the following ordinances of the City of Atlanta relating to (1) right of way of pedestrian crossing at an intersection, (2) driving under the influence of intoxicants, and (3) maximum speed limit of 25 miles per hour. Defendant in his answer denied all material allegations of the petition and further answered alleging that deceased's death resulted from his failure to exercise ordinary care for his own safety and that deceased's negligence was greater than that charged against him.

There were no eyewitnesses to the collision, and plaintiff bases her case solely on circumstantial evidence. Substantially the following evidence was adduced on the trial of the case: Richard A. Boone, city detective for the Atlanta Police Department testified: 'Cameron Street there runs north and south and Glenwood east and west. When we got there the injured man was sitting in an upright position aided by Mr. Garmon, propping him up about 11 feet and 2/12 inches from the southeast curb of Glenwood. His body was lying in Glenwood intersection. * * * I say, if the sidewalk had shot directly on across the street his body was lying in the sidewalk line, if it was projected across the street, across Glenwood Avenue. * * * The skidmarks begun over on the side near the curb. In other words, the car, from the time he put on the skidmarks went 37 feet right down by the side of the curb. The skidmarks started 25 feet after the bloodspots there on the street. * * * It was 37 feet exactly from the point of the start of the skidmarks to the end of the skidmarks. The car was 62 feet on the south side of Glenwood from the intersection from Cameron Street going east on the southeast side. * * * There was no indication of any impact on the front of the automobile; however, on the right side at the back window there were some dirty streaks. * * * It looked like a hand had durg down the side of the car. * * * It's a broad intersection. Cameron Street is narrower than Glenwood and it makes the angle across the street there quite long; I mean, the angle is greater than 90 degrees of the two streets. * * * Cameron Street does not run into Glenwood at right angles; there is a jut off, a slight jut off there. * * * After they pour the injured person in the ambulance I got close enough to smell Mr. Garmon's breath; I amelled an alcoholic odor of some sort. At the time he had an impediment in his speech, his eyes didn't look just exactly right, as if they didn't focus. The man was not drunk, he was under the influence of some intoxicant; I would say he was under the influence enough to impair his driving ability but he was definitely not drunk. * * * I don't recall finding a liquor bottle there that night; we did not run across one.'

Mrs. John Cassell, wife of deceased, testified that he was 68 years of age, in good health, and earning from $2300.00 to $2400.00 annually.

S.D. Burnett testified for the plaintiff as to the location of the injured man: 'If the sidewalk had extended across the street, he would have been in the extension of the sidewalk, I think.'

R. W. Cagle, witness for the plaintiff, testified as follows: 'I had occasion to go out and measure the intersection of Cameron and Glenwood. The pavement surface of Glenwood at that intersection, from the corner of the curb to the corner of the curb, across, is about 45 feet. Where the curve gets out of the curb and down into the body of the street, it is about 32 feet. At the intersection, from the corner of the curb to the corner of the curb, at Cameron Street, it is approximately the same distance, about 45 feet. The width of that street, after you get in the curve, at the intersection, and you get into the body of the street, is 32 feet. Both of them are the same distance in the body of the streets and both are approximately the same width at the intersection.'

H. E. Grizzle testified for plaintiff: 'When I got there the body was laying in the street from the curb. * * * The injured man was 8 or 10 feet from the curb on the east corner, the southeast corner of the intersection; he was in Glenwood.'

Charles Hall, codefendant, testified: 'I believe it was around 7:00 in the evening when he left the lot with the car. * * * Mr. Garmon was not under the influence of intoxicating liquor when he left my place of business.'

Harry McCollister, Jr., city detective, testified: 'We found skidmarks 25 feet from the point where the body was found; there were no skidmarks but after 25 feet we did find skidmarks and they were approximately 37 feet as well as I remember; the car was still sitting in the skidmarks. I had occasion to notice Mr. Garmon. Mr. Garmon was under the influence of some intoxicant; he was not drunk but he was under the influence. * * * The headlights of the Lincoln automobile were on, the front headlights; I couldn't say whether it was the upper beam or the lower beam. I would say those headlights shown a 100 yards in front of that car; they were good and strong; it was a brand new automobile, good lights. * * * The right rear tire was flat when we drove up there. * * * The tires had very good tread and I don't think the automobile had much mileage on it. * * * I did not find any whiskey bottle; I didn't see one in his car that I recall. * * * As to what was it about Mr. Garmon that I used as a basis for my opinion that he was under the influence of some form of intoxicant: Well, he didn't talk exactly normal and when he got in the car, he might have been a little off balance--I mean, might have staggered just a little. You ask me not to tell you what might have been but to tell you actually what did occur. Well he did. He was off balance when he got in the car and he made the statement to us that he had been drinking; I asked him if he had and he said yes, he had had a drink or a few drinks or something to that effect; in other words, he was drinking. As to whether I remember what he did say as to whether he had a drink or a few drinks: I think he said a drink.'

W. G Manders, ambulance driver,...