Gordy v. Powell, 36563
| Decision Date | 28 May 1957 |
| Docket Number | No. 36563,No. 2,36563,2 |
| Citation | 99 S.E.2d 313,95 Ga.App. 822 |
| Parties | P. E. GORDY et al. v. Lucille POWELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. 'An assignment of error upon the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant's motion for a new trial, to the overruling of which exception is taken, includes the ground that the verdict was contrary to the evidence and without evidence to support it.' Wakefield v. Lee, 18 Ga.App. 648(1), 90 S.E. 224; Atlantic Coast Line Railroad Co. v. Blalock, 8 Ga.App. 44, 68 S.E. 743; Bagwell v. Milam, 9 Ga.App. 315, 71 S.E. 684.
2. The trial court did not err in overruling the motion for a directed verdict, the motion for judgment notwithstanding the verdict, nor the general grounds of the motion for new trial.
3. The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused.
4. The jury is not confined to any procrustean rule in measuring the value of a life. The life-tables are an aid to that end, but age, health, habits, and the money one is making, are also data from which a conclusion may be drawn.
5. It is not ordinarily error to state the contentions of the parties as made by the pleadings, and this is especially true where the contentions submitted are substantiated by fact or inference.
6. Defects in pleadings which should have been taken advantage of by special demurrer are not proper subject matter of a motion for new trial.
7-9. There is no merit in special grounds 14, 15 and 17 (numbered 18, 19 and 21) for the reasons stated in the respective divisions of the opinion.
Lucille Powell, as the widow of Sergeant Henry F. Powell, brought an action for damages under Code, § 105-1302 against Percy E. Gordy and Lucy Gordy, husband and wife, for the homicide of her husband, which she alleged was caused solely by the negligence of the defendants, both individually and jointly. The material allegations of the petition are substantially as follows: The plaintiff's husband was at the time of his death the sole support of the plaintiff and their children. He was steadily employed and earned in excess of $6,867.60 per year, most of which he spent in the support, maintenance and education of his family. On June 20, 1955, at approximately 6:30 a. m., when the weather was clear and bright, the plaintiff's husband was driving a 1953 Packard ambulance belonging to Sipple's Mortuary in the course of his authorized employment and in answer to an emergency call. While proceeding from the patient's home on an emergency call and en route to the hospital, Sergeant Powell was driving west on Henry Street at a lawful rate of speed. The red light on the ambulance was blinking and a siren was blowing at top capacity. He was driving as cautiously as possible, taking care to observe all traffic regulations and to care for and deliver his patient to the hospital, who, at the time, was in a serious condition from loss of blood. On coming to the intersection of Henry Street and East Broad Street, Sergeant Powell, while still blinking the red light and still blowing the siren on the ambulance, watched the green light on the signal light at this intersection, and coming upgrade, slowed the ambulance and proceeded to cross the intersection carefully and cautiously; but, when he was in the intersection approximately two feet on the other side of the center line of East Broad Street, a 1953 Ford sedan, later identified as belonging to both the defendants as a family car and being driven by Mrs. Gordy, emerged from Sergeant Powell's left, heading north on East Broad Street at a terrific rate of speed, to wit, 50 miles per hour, and collided with the ambulance being driven by Sergeant Powell. The Gordy car struck the ambulance at the left front fender and glancing sideward proceeded an additional 75 feet from the point of impact. At the time of the impact, Sergeant Powell could do nothing to prevent the collision caused by Mrs. Gordy's speed and due to the fact that the Gordy car rammed into the side of the ambulance. Mr. and Mrs. Gordy, Individually and jointly, negligently, wantonly, carelessly, and with complete disregard for the safety of others, caused the collision resulting in Sergeant Powell's death by performing acts in violation of the following State laws:
(a) Code (Ann.Supp.) § 68-1650, by failing to yield the right of way to the ambulance which was already in the intersection at the time the defendants' automobile, driven by Mrs. Gordy, entered the intersection.
(b) Code (Ann.Supp.) § 68-1652, by failing to stop and yield the right of way to vehicles already in the intersection and by failing to stop for the stop signal which was red, indicating a stop on the side from which Mrs. Gordy was approaching, and green on the side from which Sergeant Powell was approaching. The signal light turned yellow immediately after Sergeant Powell entered the intersection. This light when yellow on one side continues the red light on the other side until a red light shows in place of the yellow, thus the defendant at the time of the collision disregarded a red light in violation of the statute.
(c) Code (Ann.Supp.) § 68-1654, in that the defendant heard the siren of the ambulance and recklessly, carelessly, and without regard for the safety of others, wantonly disregarded the siren and continued to drive at a reckless pace into the intersection while still hearing the siren.
(d) Code (Ann.Supp.) § 68-1632 [?], in that the defendant drove at a speed of approximately 50 miles per hour. As the result of such speed the defendants' automobile struck the ambulance and proceeded another 75 feet and knocked down and damaged a bus-stop sign on Henry Street.
(e) Code (Ann.Supp.) § 68-1626, in that the defendants heard a siren and hearing it failed to use reasonable and prudent caution in speed and action in the presence of a potential hazard, knowing another vehicle was in the vicinity, and failing thereby to exercise due care under the circumstances in violation of this statute.
(f) Code (Ann.Supp.) § 68-1615, in that the defendant failed to stop for a red signal light in the intersection in violation of the statute. As a direct result of the violations of the enumerated State statutes which constitute negligence per se on the part of Mrs. Gordy and on the part of Mr. Gordy under the 'family purpose doctrine,' the plaintiff suffered the loss the full value of the life of her husband. All the allegations stated affecting the defendant, Mrs. Gordy, are repeated and pleaded against Mr. Gordy, as Mr. Gordy is the husband and head of the household and liable for the torts of his wife under Code, § 105-108 under the family purpose doctrine. At the time of the collision, Mrs. Gordy was driving the automobile with the knowledge, permission and consent of Mr. Gordy, and the automobile was and has been used as a family car by both the defendants as a family car and both the defendants have and did use the automobile in their business and pleasure adventures equally.
(g) On the entire side of the automobile driven by Mrs. Gordy was a large sign in these words: 'Acme Lock, Bike & Gun Fix-It Shop, 1909 East Broad Street,' indicating the business operated by Mr. Gordy as his business. As the result of the joint and individual negligence of the defendants and solely because of such negligence, the plaintiff's husband received enumerated injuries from which he died. At all times herein stated, Sergeant Powell exercised great care and caution and exhibited unusual caution and care in all his actions and in no way contributed to the collision or to his resulting death, and in no way possible could he have avoided the collision.
In their answer, the defendants denied the plaintiff's allegations of negligence and alleged that Sergeant Powell's death was due to his negligence and reckless disregard for the safety of others which caused the collision and resulted in his death. It is further alleged that Sergeant Powell violated the following ordinances of the City of Savannah contained in Grayson's Code of 1945, to wit, (a)
(b)
(c) ...
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