Goldstein v. Karr
| Citation | 110 Ga.App. 806,140 S.E.2d 40 |
| Decision Date | 03 December 1964 |
| Docket Number | No. 40743,No. 3,40743,3 |
| Parties | Dr. Irving H. GOLDSTEIN v. Mrs. Rubye C. KARR |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. An express waiver made at the trial by parties is binding on them. Neither can urge as error in a motion for new trial substance which the waiver embraced.
2. The charge of the court considered in this division of the opinion was not erroneous.
3. A party is not harmed by an instruction comparing a state statute and city ordinance as similar where each is applicable to the case and to the party although one may contain an additional standard of conduct. If construed to eliminate the additional standard, the party is benefited. If construed to include the additional element, the true standard of conduct is applied.
4. The jury could not have been misled by the trial court's inadvertent misuse of terms considered in this division of the opinion.
5. The technical error of the trial judge considered in this division of the opinion was trivial and could not have misled the jury. The assignment of error was on the charge as given and not upon the court's failure to charge applicable law.
6. The trial judge did not err in refusing the written requests to charge considered in this division of the opinion.
7. It is not error to refuse a request to charge the language of a Code section some part of which is inapplicable to the case.
8. It is not error to refuse to give a stated charge in the exact language requested in writing where the ground does not show that the request was presented before the jury retired to consider their verdict.
Irving H. Goldstein filed suit against Rubye C. Karr, charging the defendant with negligence and seeking to recover damages for injuries sustained in a collision of two automobiles of which one was driven by plaintiff and the other by defendant. To plaintiff's petition, defendant filed her answer and cross action, alleging that the collision was due to plaintiff's negligence and praying for damages for injuries sustained by defendant.
Upon trial of the case the evidence showed that defendant was traveling south on Peachtree Road in the City of Atlanta. She stopped at a red traffic-control signal at the intersection of Peachtree Road with Terrace Drive, waiting, with the directional signal lights of her automobile blinking, to make a left turn into Terrace Drive. At this point Peachtree Road was divided into four lanes for two lanes of moving traffic in each direction, and the space in each outside lane nearest the curb was marked for parking. After the traffic light turned green for traffic on Peachtree Road, automobiles at the front of the two traffic lanes running north on this street waited for defendant to make a left turn, and she proceeded to turn left. At this time plaintiff was traveling north on Peachtree Road between the curb and the line of automobiles waiting in the outside lane--that is, in the space marked for parking. As defendant was making her left turn in front of the two lanes of northbound traffic waiting at the intersection, plaintiff proceeded into the intersection and collided with defendant.
The trial resulted in a verdict and judgment for defendant on her cross action in the amount of $6,000. The plaintiff excepts to the judgment of the trial court denying his motion for new trial as amended.
Lokey & Bowden, Hamilton Lokey, Arnall, Golden & Gregory, H. Fred Gober, Atlanta, for plaintiff in error.
Sheats, Parker & Webb, John Tye Ferguson, Paul Webb, Jr., James McDaniel, Atlanta, for defendant in error.
1. Special ground 4 of plaintiff's motion for new trial assigns error upon an excerpt from the court's charge to the jury. The objections are based in varying phraseology on the ground that the excerpt eliminated the comparative negligence rule from the jury's consideration. It is, however, unnecessary for us to rule upon these contentions as the following appears in the trial court's certificate of approval of the charge:
The court had charged on comparative negligence to a degree. We cannot say as a matter of law that the additional charge on the principle contemplated by the court and waived by counsel would not have eliminated the subject matter of the plaintiff's complaints. The express waiver made at the trial by the parties is binding on them and neither can urge as error in a motion for new trial substance which the waiver embraced. Greenway v. Sloan, 211 Ga. 775, 776(2), 88 S.E.2d 366.
2. Ground 5 complains of the following excerpt from the court's charge to the jury: 'One who is rightfully using the highway or street has a right to the use thereof which is superior to that of one who is violating traffic regulations, and in the absence of knowledge, she is not required to anticipate that some other user will unexpectedly violate the law or rule of the road and create a situation of danger.'
This special ground of the motion obviously relies on the ruling of this court in the case of Bennett v. George, 105 Ga.App. 527, 529(6), 125 S.E.2d 122, 126. Indeed the wording of the ground itself skillfully tracks the language used by Judge Hall in his Bennett. However, the ground does not show evidence of a statute comparable to that with which Judge Hall dealt. On the contrary, the evidence to which this ground points does not show circumstances sufficient to create a jury question of the kind considered in Bennett. Here, the 'circumstances' shown by the ground were not enough to give warning to the defendant and place upon her a duty to anticipate negligence by another driver. In this status the excerpt from the trial judge's charge was not incomplete and he was not required to take the second step as in Bennett and explain 'that whether circumstances were such as to warn a driver that another might fail to obey the law, or such that a driver in the exercise of ordinary care could assume that another will obey the law, was a question for the jury.'
(b) Another contention presented in special ground 5 is that the court by the use of the pronoun 'she' expressed an opinion as to who was and who was not at fault. Plaintiff is a man and defendant is a woman.
There is no merit in this contention.
There is uncontradicted evidence in the record that the plaintiff was indeed in violation of a city statute by passing to the right of another vehicle which at the time was stopped at the intersection. In this status of the evidence, even if the statement constituted an opinion of the court (which we do not decide), it was not erroneous. When a fact is proved by undisputed evidence, it is never error for a trial judge to assume or intimate that the fact is proved. Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga.App. 212, 216-217(3), 59 S.E. 713; and see Code, § 81-1104 and numerous annotations, catchword Undisputed facts.
With respect to the court's use of masculine pronouns in preceding and following portions of the charge, each of these were used merely in the generic sense and did not amount to an expression of opinion. See Code Ann. § 102-102(3); Hightower v. State, 14 Ga.App. 246, 250(3), 80 S.E. 684; Wright v. State, 206 Ga. 644, 58 S.E.2d 181.
The trial judge elsewhere in the charge submitted to the jury the issue whether defendant was driving in violation of certain traffic regulations, and the judge expressly cautioned the jury on more than one occasion that they should not take anything he said as an expression of opinion on the facts as all evidentiary matters were addressed entirely and exclusively to the jury. Under the circumstances in this case the charge is not subject to the objection that the court expressed opinions as to who was and was not at fault. 'Where it is contended in a special ground of the motion for new trial that an excerpt from the charge of the court is error as containing an expression of opinion on what has been proved, the excerpt will be considered in its context and with the charge as a whole, including a statement of the court that nothing he has said should be construed as an expression of opinion on his part.' Imperial Investment Co., Ltd. v. Modernization Construction Co., 96 Ga.App. 385(4), 100 S.E.2d 107.
3. Special ground 6 complains that the trial judge erred in charging the jury that Code Ann. § 68-1636 and § 30.41, of the Code of the City of Atlanta are substantially similar. A comparison of these two statutory provisions does in fact reveal them to be identical, with the single exception that the city ordinance goes one step further than the state statute by including an additional requirement as a condition for the permissible overtaking and passing on the right side of one vehicle by another. This additional requirement is that 'visible traffic lines are marked on the pavement.' Obviously, the charge could not have been harmful to the plaintiff, for by interpreting the instruction as excluding the additional requirement of the ordinance is to show a benefit to the plaintiff of one less standard of conduct to meet. Interpreting the ordinance in its full context is neither to harm nor to benefit the plaintiff but is to apply to his conduct the true standard required.
Special ground 8 objects also to the trial court's description of Code Ann. § 68-1651 and § 30.48 of the city code as being ...
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