Hatcher v. Bray, 34556

• Decision Date: 22 April 1953
• Docket Number: No. 34556,No. 2,34556,2
• Citation: 77 S.E.2d 64,88 Ga.App. 344
• Parties: HATCHER v. BRAY
• Court: Georgia Court of Appeals

Page 64

77 S.E.2d 64

88 Ga.App. 344

HATCHER v. BRAY.

No. 34556.

Court of Appeals of Georgia, Division No. 2.

April 22, 1953.

Rehearing, Judgment Adhered To on June 9, 1953.

SYLLABUS BY THE COURT.

The evidence authorized the verdict for the defendant; none of the special grounds of the motion for a new trial, which are dealt with in the opinion, authorize the grant of a new trial; and the trial court did not err in denying that motion.

Mrs. Verna Hatcher brought an action for damages against her son-in-law, Gordon Bray, to recover for enumerated injuries alleged to have been sustained in an automobile collision when she was riding in his automobile as a guest while it was being driven by her granddaughter, the defendant's daughter, who was grossly negligent. The jury returned a verdict for the defendant. The plaintiff's motion for new trial, based upon the usual general grounds and nine special grounds, was denied and she excepted.

Bell & Bell, Macon, for plaintiff in error.

Harris, Harris, Russell & Weaver, Macon, for defendant in error.

CARLISLE, Judge.

1. In special ground 1, error is assigned on the following excerpt from the charge of the court to the jury: 'In determining whether the preponderance of evidence lies, you may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility, so far as the same may legitimately appear from the trial. You may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.' The ground of the objection is the court's use of the expression 'may consider,' instead of instructing the jury that it is 'the duty of the jury to consider' all the facts and circumstances, etc. There is no merit in this ground. The language used is exactly that of Code, § 38-107, and this exact objection has been decided against the plaintiff Jordan v. State, 130 Ga. 406, 60 S.E. 1063; and see also Quinton v. Peck, 195 Ga. 299(3), 24 S.E.2d 36.

2. In special ground 2, error is assigned upon the court's omission to charge the language of Code, § 105-203, and the court's omission, in the following excerpt from the charge, of the words 'however inattentive he may be': 'Now, gentlemen, I charge you that gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character, as distinguished from a mere failure to exercise ordinary care. It is a very great negligence or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is heedless and palpable violation of legal duty respecting the rights of others. The culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence.' This definition of gross negligence in the charge is in the exact language of Shaw v. Moore, 104 Vt. 529, 162 A. 373, 86 A.L.R. 1139, which was approved by this court in Tucker v. Andrews, 51 Ga.App. 841, 845, 181 S.E. 673. The judge gave this elaborate definition of gross negligence and later in the charge gave the exact definition appearing in Code, § 105-203. The two definitions are in nowise conflicting. We are at a loss to understand at what point in the first definition the court should have inserted the expression, 'however inattentive he may be.' However, even if the expression could have been inserted in the first definition, its omission was more favorable to the plaintiff than to the defendant. Cedrone v. Beck, 74 Ga.App. 488, 40 S.E.2d 388. In Seaboard & Roanoke Ry. Co. v. Cauthen, 115 Ga. 422, 41 S.E. 653, on which counsel for the plaintiff relies, it is to be observed that the verdict in that case was for the plaintiff, and the defendant assigned error upon the omission from the Code definition of the expression sought to be included here. Such circumstances present an entirely different question. This ground of the motion for new trial is not meritorious.

3. In special ground 3, error is assigned upon the following excerpt from the charge on the ground that it injected into the case the theory of circumstantial evidence, when neither the plaintiff nor the defendant had established her case nor his defense by such evidence: 'Now, I charge you, gentlemen, that, to establish a case by circumstantial evidence, the facts shown must not only reasonably support that conclusion relied upon, but must also be inconsistent with every other reasonable hypothesis. The circumstances relied upon must not only be consistent with the conclusion sought to be established, but also inconsistent with every other reasonable inference. This consistency with the one and inconsistency with the other is required to be established by a preponderance of the evidence.' The evidence on the issue of how the collision occurred was both direct and circumstantial, and the court did not err in giving in charge the law on that subject. Shivers v. State, 181 Ga. 557, 561, 183 S.E. 489.

4. In special ground 4, error is assigned on the following excerpt, on the ground that there was no evidence authorizing such a charge: 'I charge you that if you believe from the evidence that Miss Charlene Bray, while driving her father's car at the time and place of the accident, was threatened with the imminent danger of experiencing a collision with another automobile, or had reasonable grounds to believe that she was so threatened, which was not created through her own fault, then you would be authorized to find that she had a right to choose a course which later proved to be dangerous, provided you find such course seemed to her at the time to be the safest under the circumstances. One who is threatened with an emergency is not held to the same circumspection of conduct that he would be if he were acting without compulsion of emergency, if there was an emergency.' The court in this excerpt from the charge left to the jury the question of whether or not there was an emergency and whether or not the driver of the automobile, Miss Bray, had herself created the emergency. From one of the two oversions given by Miss Bray as to how the collision occurred, the jury would have been authorized to find that she was confronted by an emergency, in that as she proceeded along Brentwood Avenue at a speed of approximately 20 miles per hour she was confronted with the following situation: At the intersection of Brentwood and Date Avenues automobiles were parked on both sides of Brentwood. She observed an automobile coming from the opposite direction at a much greater speed that she was traveling. When the car coming from the opposite direction was within ninety feet of the point where the cars were parked on Brentwood, it came across the center line onto Miss Bray's side of the street, leaving insufficient space for her to pass between the oncoming car and the parked car, and she was forced by this sudden occurrence to swerve her car to the right and into the pole. Under this evidence, the trial court quite properly charged on emergency.

5. In special ground 5, error is assigned upon the following excerpt from the charge of the court, on the ground that such charge was not warranted by the evidence: 'Now the plaintiff in this case, as in other cases, is bound by the rules of ordinary care and diligence. If the plaintiff, by the exercise of ordinary care, could have avoided the consequences to herself caused by the defendant's negligence, if any, then she is not entitled to recover. Now, gentlemen, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. The absence of such diligence is termed ordinary negligence.' From the evidence as to the grade of Brentwood Avenue, the unobstructed view along the street for a considerable distance in the direction in which Miss Bray was driving, the fact that Miss Bray did not see her car which caused her to swerve into the electric-wire pole until it was within approximately 90 feet of her, the jury could infer that she was not keeping a proper lookout; and from the...