Howard v. Ga. Ry. & Power Co

• Decision Date: 20 April 1926
• Docket Number: (No. 16709.)
• Citation: 133 S.E. 57,35 Ga.App. 273
• Court: Georgia Court of Appeals
• Parties: HOWARD . v. GEORGIA RY. & POWER CO.

35 Ga.App. 273

133 S.E. 57

HOWARD .

v.GEORGIA RY. & POWER CO.

(No. 16709.)

Court of Appeals of Georgia. Division No. 2.

April 20, 1926.

(Syllabus by Editorial Staff.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Suit by Mrs. G. M. Howard against the Georgia Railway & Power Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Harwell, Fairman & Barrett, of Atlanta, for plaintiff in error.

Colquitt & Conyers, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J. [1] 1. In this action to recover for injuries alleged to have been sustained by the plaintiff as a result of the defendant's negligence when the plaintiff was riding in an automobile belonging to and driven by her husband, even though, under the evidence, the negligence, if any, on the part of the husband may not have imputable to the wife, the latter was under a duty not to be negligent herself, and to exercise proper care for her own safety, and, under the evidence as adduced, it was for the jury to determine whether she should have been on the lookout for the street car (with which the automobile collided) or should have warned the driver, or what, if anything, she, as a reasonably prudent person, should have done under the circumstances. Sarman v. Seaboard Air Line Ry. Co., 33 Ga. App. 315 (1), 125 S. E. 891.

2. Assuming that the court committed error, in view of the evidence, in submitting to the jury the question of whether the neg-leet of the driver should be imputed to the plaintiff, and also in confusing the doctrine of imputable negligence with the rule of law requiring ordinary care of the plaintiff, since the excerpt from the court's charge complained of on these grounds permitted the jury to impute the driver's negligence to the plaintiff only in the event that they found that the plaintiff, by the exercise of ordinary care, could have avoided the consequences to herself of the defendant's negligence, and, since it is true that the plaintiff was not entitled to recover at all if she could by ordinary care have avoided the consequences of the defendant's negligence and failed to do so, such errors in the charge, if existing, were harmless to the plaintiff. Collum v. Georgia Ry. & Electric Co., 140 Ga. 573 (2), 79 S. E. 475; Atlanta, etc., R. Co. v. Gardner, 122 Ga. 82 (7), 49 S. E. 818.

3. Assuming also that the court erred, under the pleadings and evidence, in submitting the defense of unavoidable accident, since the charge upon this subject was such as to allow a consideration of such defense only upon condition that the jury found that the defendant was not negligent, and since the absence of any negligence by the defendant would have constituted a complete defense, the charge upon the subject of unavoidable accident was likewise harmless.

"A charge that, if the injury resulted from an accident, and neither party was at fault, there can be no recovery, is in the nature of an elaboration or additional statement of the proposition that the defendant is not liable if it is without fault." Savannah Electric Co. v. Jackson, 132 Ga. 559(4), 563, 64 S. E. 680, 682.

4. In the absence of request, the court did not err in failing to charge the jury that the negligence of the plaintiff's husband, the driver, could not, under the evidence, be imputed to the plaintiff; this being a collateral matter. Branch v. Bishop, 135 Ga. 110 (2), 68 S. E. 1021.

5. The charge that, if the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, if the defendant was negligent, being substantially the language of the Civil Code 1910, § 4426, was not erroneous as impressing the jury that the plaintiff was under a duty "to avoid the consequences of the defendant's negligence, though such negligence was not known or apparent to her, or was reasonably to be apprehended by her, and that, if she did not avoid it she could not recover.'" See, in this connection, Collum v. Georgia Ry. & El. Co., 140 Ga. 573 (2), 79 S. E. 475; Atlanta, etc., R. Co. v. Gardner, 122 Ga. 82 (7), 49 S. E. 818; Southern Ry. Co. v. Gore, 128 Ga. 627 (1), 58 S. E. 180; Louisville & N. R. Co. v. Bedford, 142 Ga. 770 (6), 83 S. E. 792; Southern Cotton Oil Co. v. Caleb, 143 Ga. 585 (1), 85 S. E. 707. If the plaintiff desired that the court's charge should be amplified in conformity with the principles laid down in Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 39 S. E. 300, 54 E. R. A. 802, a request to charge should have been made accordingly.

6. The evidence (introduced without objection) being sufficient to authorize the instruction "that, if she (the plaintiff) herself, by exercising ordinary care, could have avoided the consequences to herself of the defendant's negligence, if there was such, she would not be entitled to recover, " the charge was not error as being unauthorized by the pleadings, where the defendant's answer, if not originally broad enough for that purpose, could have been enlarged by amendment to include the defense...