Graham v. Malone
| Decision Date | 08 May 1962 |
| Docket Number | No. 1,No. 39475,39475,1 |
| Citation | 126 S.E.2d 272,105 Ga.App. 863 |
| Parties | Ruth GRAHAM v. W. S. MALONE, Jr., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The general grounds of the motion for a new trial are without merit.
2. The elimination of one of the allegations of negligence in the petition by the trial court in its charge to the jury was an expression of the judge's opinion as to what had or had not been proved, and under the provisions of Code § 81-1104 the decision must be reversed and the motion for a new trial granted, regardless of the fact that the verdict and judgment were in favor of movant.
Mrs. Ruth Graham filed a petition in Fulton Superior Court against William S. Malone, Jr., and William R. Bentley, Jr., partners d/b/a Custom Craft Seat Cover Company, seeking $20,000 damages for alleged personal injuries. The petition alleged substantially as follows: On September 11, 1957, the plaintiff, driving her husband's automobile in a southerly direction on West Peachtree Street 'near' the City of Atlanta, stopped for a red light at the North Avenue intersection. As she started forward with the green light, a sedan automobile, with a motorcycle hitched onto the rear end and driven by an agent and servant of the defendants, ran into the rear end of the automobile driven by the plaintiff. The force of the collision jolted the plaintiff which resulted in enumerated injuries.
The allegations of the defendants' negligence were as follows: Not having the automobile which the agent-servant was driving under control; 'not applying the brakes of the said sedan automobile in time to avoid running into the rear end of the automobile being operated by plaintiff'; (emphasis supplied) not keeping a proper lookout ahead and observing the automobile plaintiff was driving being stopped and being in the process of resuming forward motion; and in not directing the movement of the said sedan automobile around the right or left side of the automobile plaintiff was driving in such a manner as to avoid running into and against the said automobile being driven by plaintiff.
The plaintiff testified that after the collision, she had asked the defendant's driver what had happened, to which he had replied,
The jury rendered a verdict of $2,000 for the plaintiff. The plaintiff's motion for a new trial alleged as error, in addition to the general grounds, portions of the charge to the jury. Special ground No. 1 attacks as violative of Code § 81-1104 the following portions of the charge: etc. 'Gentlemen, if, after considering all of the evidence in the case and applying the principles of law given you in charge, you find that the defendants were guilty of negligence in one or more of the particulars or grounds of negligence charged in the plaintiff's petition, excepting therefrom the allegations of negligence in respect of the applying the brakes, and that such negligence of the defendants, if you so find, was the proximate cause of the plaintiff's injuries, if she was injured, then the plaintiff would be entitled to recover against the defendants.' (Emphasis supplied).
Special ground No. 2 assigns error on the court's failure to charge the jury that if they found that the defendants were negligent in failing to apply the brakes in time to avoid...
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Dean v. State, 66189
...cause for a new trial. Henderson v. State, 14 Ga.App. 672, 82 S.E. 61; Canady v. State, 68 Ga.App. 735, 23 S.E.2d 870; Graham v. Malone, 105 Ga.App. 863, 126 S.E.2d 272. Here, the trial court's instructions to the jury were in effect an opinion as to what had been proven. The court incorrec......
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Pritchett v. Higgins
...judge did not instruct the jury that there was no negligence on the defendant's part in this respect, as was done in Graham v. Malone, 105 Ga.App. 863, 126, S.E.2d 272, but on the contrary simply stated that he was not submitting subparagraph F of paragraph 10. He made no comment as to what......
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Cox v. General Motors Corp.
...Garner v. Young, 214 Ga. 109, 103 S.E.2d 302 (1958), Benefield v. Benefield, 224 Ga. 208, 160 S.E.2d 895 (1968), and Graham v. Malone, 105 Ga.App. 863, 126 S.E.2d 272 (1962), cases cited by appellants, in which the trial court's remarks clearly expressed an opinion and removed at least one ......
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Crawford v. State, 52394
...cause for a new trial. Henderson v. State, 14 Ga.App. 672, 82 S.E. 61; Canady v. State, 68 Ga.App. 735, 23 S.E.2d 870; Graham v. Malone, 105 Ga.App. 863, 126 S.E.2d 272. Compare Code § 81-1009. Relying upon Morgan v. State, 229 Ga. 532, 192 S.E.2d 338, the state contends that the court's ex......