Hare v. Southern Ry. Co

• Decision Date: 29 November 1939
• Docket Number: No. 27571.,27571.
• Parties: HARE. v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

6 S.E.2d 65

HARE.

v.SOUTHERN RY. CO. et al.

No. 27571.

Court of Appeals of Georgia,

Division No. 1.

Nov. 29, 1939.

Syllabus by the Court.

Certain errors of commission in the charge of the court require another trial of the case.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action by Mrs. D. J. Hare against the Southern Railway Company and another for the death of plaintiff's son which occurred in automobile-train collision. To review an adverse judgment, the plaintiff brings error.

Reversed.

James A. Branch and Thomas B. Branch, Jr., both of Atlanta, for plaintiff in error.

Neely, Marshall & Greene and W. Neal Baird, all of Atlanta, for defendants in error.

BROYLES, Chief Judge.

Mrs. Hare brought a suit against the Southern Ry. Company and its engineer, Alexander, for the full value of the life of her son, Norman Hare. Her petition alleged that he was killed in a railroad crossing collision between a train of the defendant company, operated by Alexander, and an automobile in which her son was riding as an invited guest, and that his death was caused by the negligence of the defendants. She alleged that the automobile was owned by Howard Davis and on the occasion in question was being driven by him, and that her son had no control over its operation. On the trial the jury returned a verdict for the defendants. Subsequently the plaintiff's motion for a new trial was overruled, and she excepted to that judgment. The general grounds of the motion are not referred to in the brief of counsel for the plaintiff in error and therefore are treated as abandoned. There are ten special grounds of the motion and all of them complain of alleged errors in the charge of the court.

Grounds 4(b), 5, and 7 complain of certain excerpts from the charge in which the jury were instructed, in effect, that it was for them to determine whether plaintiffs son and Howard Davis were engaged in a joint enterprise, and whether the son had the right of directing, controlling, or influencing the operation of the car while riding therein as an invited guest. The excerpts were assigned as error on the ground that no evidence was introduced tending to show that plaintiff's son and Howard Davis were engaged in a joint enterprise, or that her son had any authority to direct, control, or influence the operation of the car, and, therefore, no such issues were in the case and it was error to instruct the jury thereon. The only evidence bearing on this question was as follows: Plaintiff's son and Howard Davis worked at the same place and usually rode there in the car of Davis, and that on the morning of their death they were riding to their work in the car which Davis was driving. The undisputed evidence showed that Davis owned the car and that Hare was riding therein as an invited guest; and there was no evidence, direct or circumstantial, that he had any right or duty to control, direct, or influence the operation of the automobile, or that he and Davis were engaged in a joint enterprise in controlling, directing, and governing such operation. In Fuller v. Mills, 36 Ga.App. 357(1), 136 S.E. 807, this court held: "A joint enterprise by two persons riding in an automobile along a public highway, the engagement in which will impute the negligence in operating the automobile of one of the persons, who is the driver, to the other person, must be a joint enterprise in controlling, directing, and governing the operation and running of the automobile, and not merely a joint interest in the objects and purposes of the trip." See, also, Savannah v. Waters, 27 Ga.App. 813 (1), 109 S.E. 918; Jones Mercantile Co. v. Copeland, 54 Ga.App. 647(3), 188 S.E. 586; Laseter v. Clark, 54 Ga.App. 669(4), 672, 189 S.E. 265; Atlanta & W. P. R. Co. v. McCord, 54...