J.F. McKinney & Co. v. Darby

• Decision Date: 30 October 1937
• Docket Number: 26432.
• Parties: J. F. McKINNEY & CO. et al. v. DARBY.
• Court: Georgia Court of Appeals

193 S.E. 594

56 Ga.App. 621

J. F. McKINNEY & CO. et al. v. DARBY.

No. 26432.

Court of Appeals of Georgia, First Division

October 30, 1937

Syllabus by the Court.

1. In suit for damages arising out of collision of defendant's automobile with that of plaintiff, at night, where plaintiff admitted, and there was no dispute, that at the time of the collision he had no lights burning on his car, it was not reversible error for the court to reject evidence offered by the defendant, that the lighting system on plaintiff's car was defective and therefore not in working order.

2. Whether certain acts do or do not constitute negligence is generally a question for the jury. In the present case it cannot be said as a matter of law that any of the acts of commission or of omission charged in plaintiff's petition were not negligence as a matter of law. The trial judge therefore did not err in submitting to the jury all of said alleged acts of negligence.

3. The remaining assignments of error are without merit. The judge did not err in overruling the motion for new trial.

Error from Superior Court, Cherokee County; J. H. Hawkins, Judge.

Action by James Darby, by next friend, against J. F. McKinney & Co. a partnership, and another, wherein defendants filed cross-bills. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

H. G Vandiviere and Howell Brooke, both of Canton, for plaintiffs in error.

Jno. S Wood, of Canton, for defendant in error.

GUERRY Judge.

James Darby, by next friend, brought this action against J. F McKinney & Co., a partnership, and Howard McKinney, for damages for personal injury alleged to have been brought about by the negligent operation of an automobile belonging to J. F. McKinney & Co. by Howard McKinney, an employee of said firm. J. F. McKinney & Co. answered and filed a cross-bill for damages for injury to its automobile alleged to have been caused by the negligence of the plaintiff. Howard McKinney filed a separate answer and also filed a cross-bill seeking damages for personal injuries alleged to have been caused by the negligence of the plaintiff. The jury returned a verdict in favor of the plaintiff in a named sum and the defendants excepted to the overruling of their motion for new trial. The allegations of plaintiff's petition make it appear that on October 30, 1934, plaintiff drove a model T Ford truck to Canton, Ga., and delivered a load of wood, and shortly after dark and about 5:30 p. m. he started on the return journey home. About a mile from Canton the truck developed motor trouble and plaintiff stopped for the purpose of undertaking to repair the trouble. At the point where plaintiff stopped there was a guard rail beside the highway on the right-hand side, in the direction in which he was driving, placed at a point slightly more than six feet from the edge of the pavement on said highway, and in stopping the truck he drove it as far off said highway as this guard rail would permit. The only parts of the truck that remained upon the paved portion of the highway were the left wheels and that portion of the truck extending over said wheels. In attempting to repair the truck plaintiff had a lantern for light, and after getting out of the truck he saw the lights of the automobile of J. F. McKinney & Co. approaching in the same direction that he was headed around a curve approximately 250 yards from him, and he immediately went to the rear of his truck with the lighted lantern and approximately 6 feet from the edge of the pavement, "in order to give notice of the location of said truck on and adjacent the highway, which position he occupied until he was struck by said automobile." The automobile was being operated by Howard McKinney at a high and excessive rate of speed, to wit, 60 miles per hour. When defendant's automobile approached along said highway to within 30 feet of where plaintiff was standing, it was suddenly swerved to the right and left the pavement and crashed into the guard rail and struck plaintiff while still going at a high and excessive rate of speed, knocking him against the guard rail and against the truck and injuring him in a described manner. The petition alleged that the defendant was negligent: "(a) In driving and operating said automobile at a high and excessive rate of speed. (b) In driving said automobile off of said highway on the shoulder thereof, as hereinbefore alleged. (c) Petitioner shows that the rate at which said automobile was being operated as aforesaid by the said Howard McKinney was unlawful, and as such was negligence per se. (d) Petitioner shows that the failure of the defendant, Howard McKinney to drive said automobile upon the highway, and to the left of petitioner in passing him, was unlawful, and as such constituted negligence per se. (e) Petitioner shows that the failure of the said Howard McKinney to drive said automobile on the paved portion of said highway, and to drive said automobile off of said paved portion of said highway on to the shoulder thereof, where your petitioner was struck, was unlawful, and as such constituted negligence per se. (f) Petitioner shows that the operation of said automobile by said Howard McKinney upon said highway at a greater rate of speed than was reasonable and safe, and in striking your petitioner while...