Kimberly v. Reed, 32388.

• Decision Date: 21 April 1949
• Docket Number: No. 32388.,32388.
• Citation: 79 Ga.App. 137,53 S.E.2d 208
• Parties: KIMBERLY. v. REED et al.
• Court: Georgia Court of Appeals

53 S.E.2d 208

79 Ga.App. 137

KIMBERLY.

v.REED et al.

No. 32388.

Court of Appeals of Georgia, Divisions No. 1 and 2.

April 21, 1949.

Syllabus by the Court.

1. It was not error for the court to charge Code Ann. Supp. § 68-301 (a, b) in this case, there being allegations to the effect that under the circumstances a violation of applicable speed laws was gross negligence, where it was not charged that a violation of the speed laws in itself was gross negligence, and where gross negligence was defined by the judge in his charge to the jury and it was made clear to the jury that recovery must be predicated on a finding of gross negligence on the part of the driver of the automobile.

2. Where the court in his charge to the jury correctly defined slight diligence and gross negligence, it was not error to immediately thereafter charge that "if, on the other hand he should not exercise that degree of care which every man of common sense did exercise under the same or similar circumstances to prevent injury to another he would be guilty in failing to exercise like diligence, " and the concrete meaning of this statement, in terms of slight diligence and gross negligence, is supplied by the prior definition of these terms.

3. The doctrine of res ipsa loquitur was not involved in this case, there being direct evidence serving to explain, if the jury should so believe, what caused the ac cident, and whether or not the acts of the driver constituted gross negligence; but a necessary element in the chain of facts establishing the right of recovery was the identity of the driver of the automobile, and a charge on circumstantial evidence was applicable to the evidence in this respect, and was not error.

4. Where the court had stated in his charge that he had no right to express an opinion, and that if the jury should believe that Kimberly [the deceased against whose administrator suit is brought] was not the driver of the automobile, that all further deliberation should cease, and a verdict should be rendered for the defendant, it was not necessary for the court to use saving language to avoid an expression of opinion when making other statements in regard to the driver and the guest, and the assignment of error on portions of the charge of the court, as being an expression of opinion as to the identity of the driver, is without merit.

5. The verdict was authorized by the evidence.

6. The court did not err in overruling defendant's motion for a new trial.

FELTON, J., dissenting.

Error from Superior Court, McDuffie County; C. J. Perryman, Judge.

Action by C. E. Reed, C. E. Reed, Jr., Lin W. Reed, and Mrs. Eileine R. Padgett against G. R. Kimberly, as administrator of the estate of A. P. Kimberly, deceased, to recover respectively as the surviving husband and children of Eileine Olivia Reed for her wrongful death while riding as an invited guest in an automobile owned and operated by A. P. Kimberly. Judgment for plaintiffs, and defendant brings error.

Affirmed.

C. E. Reed, C. E. Reed, Jr., Lin W. Reed, and Mrs. Eileine R. Padgett sued G. R. Kimberly, as administrator of the estate of A. P. Kimberly, deceased, for damages, in McDuffie Superior Court. The following appears from the petition: Plaintiffs are the surviving husband and children of Mrs. Eileine Olivia Reed, who was killed on March 13, 1947. On the above date Mrs. Reed was riding, as an invited guest, in the Plymouth automobile owned and operated by A. P. Kimberly. The automobile was traveling along public highway No. 41, in a northerly direction on the right or east side of the highway, at a speed of approximately 50 miles per hour. In approaching Bolingbroke, Georgia, A. P. Kimberly failed to reduce the speed of the car at or before a prominent intersection. A steady rain was falling. In rounding a curve in the immediate vicinity of the intersection the automobile was driven partially off the paved portion of the highway and onto a shoulder on the right or east side of the road. A. P. Kimberly turned the automobile so sharply and abruptly to the left that it crossed the center line of the highway, the lane of traffic for vehicles traveling in the opposite direction, and went on and beyond the shoulder on the left or west side of the highway, and against a tree. The automobile struck the tree with such force as to loosen the tree from the soil and throw the wife and mother of the plaintiffs from the back seat of the automobile, over the front seat, and out the left door thereof, thereby causing her death. The deceased, Mrs. Reed, was a strong, healthy, and able-bodied woman, 54 years old at the time of her death, and earning or capable of earning $200 per month. Allegations of gross negligence are as follows: "a. In driving his automobile in a reckless and heedless manner upon a main highway at a speed greater than was reasonable and safe and in such a manner as to endanger the life and limbs of petitioners' wife and mother in violation of applicable State laws set forth in § 68-301, Georgia Code Ann. b. In failing to reduce the speed of his automobile at the intersection of public highway No. 41 with that leading to the business district of Bolingbroke, Georgia, c. In failing to maintain a careful lookout ahead so as to avoid driving his automobile off the paved portion of the highway and onto the shoulder thereof, d. In driving his automobile over the center line of said highway and into and across the traffic lane designated for traffic traveling in the opposite direction, e. In failing to turn his automobile from the middle of the highway so as to remain in the right hand lane of traffic, f. In failing to apply the brakes of said automobile or otherwise reduce the speed thereof so as to bring the same to a stop before striking a tree on the left side of the highway, g. In operating the automobile at a speed of approximately fifty (50) miles per hour with a reckless indifference to the life and limb of petitioners' wife and mother in view of the condition of the road and the steady rain that was falling, h. In failing to use slight care to avoid injuring petitioners' wife and mother, i. In driving his automobile into and against said tree with great force and impact." Damages of $20,000 are sought.

On the trial of the case there were three witnesses, C. E. Reed, husband of Mrs. Reed, and Edmund and William Wadley, eyewitnesses to the events causing the death of Mrs. Reed. The testimony of C. E. Reed was in regard to the family, age, health, ability to work, earning capacity of the deceased, and other facts, on which no issue is now made. The testimony of the Wadlcys, who were brothers, and who did not know any of the occupants of the car, was in respect to the location and manner in which the events took place which caused the death of all three occupants of the car, none of whom ever regained consciousness after the wreck.

The following evidence, among other things, was adduced: On March 12, 1947, Mrs. Reed was invited by Mr. and Mrs. A. P. Kimberly, her neighbors, to go with them to Atlanta the following day, where they were to attend a funeral, and would remain for about two days. The group left Swainsboro, Georgia, during the afternoon of March 13, 1947. Mr. Kimberly was acquainted with the route to Atlanta by way of Bolingbroke, and had traveled over this route in the past. While going through the village of Bolingbroke, on highway No. 41, and headed north, the car ran off the edge of the pavement, onto the right shoulder and down the edge of this shoulder for about 50 feet, then back across the highway onto the opposite shoulder, and then ran into a pecan tree located about 12 feet off the pavement. This tree is about 10 inches in diameter and was loosened andmoved about 3 inches by the impact. In the immediate vicinity, to the south, there is an intersection with a dirt road. The highway forms an "S" curve, first to the left and then to the right, for vehicles headed north, which is very deceptive, but a person acquainted with the road, however, would know about the curve. The pavement was rough and in poor condition at this place and for about 3 miles to the south. It is about 18 or 20 feet wide. There is a "slow" sign as one approaches from the south. A sign on the railroad station, indicating the town of Bolingbroke, is also visible. It was raining, drizzling, at the time, and had been raining harder, for an hour or two. As the car ran off the pavement to the right, the attention of the Wadley brothers was directed to it. At the time they were on the front porch of their store in Bolingbroke, engaged in building a squirrel cage. It is about 100 to 150 feet from the point where the car ran off the right side of the highway to the tree into which it ran on the left side, and the tree is about 150 feet from their store. Based on his observations Edmund Wadley estimated the speed of the car at 50 miles per hour, which he reiterated several times, and he said "it was going too fast" and that it did not slow up any from the first time he saw it until it hit the tree. William Wadley estimated the speed at 45 miles per hour. From his observations he testified that the driver, in attempting to pull the car back onto the pavement, "pulled it too sharp, " and the car started across the highway to the left, and when the driver "went to pull back to the right" the car skidded into the dirt. He saw skid marks on the pavement where the car went back onto the pavement after riding the right shoulder. C. E. Reed, in comparing the general appearance of his deceased wife, Mrs. Reed, with that of Mrs. Kimberly, testified that Mrs. Reed's hair was about half gray, and that Mrs. Kimberly's hair was not nearly so gray as Mrs. Reed's, and that Mrs. Kimberly was of a slight build, but that Mrs. Reed was a heavier person, and weighed approximately 140 pounds. According to the testimony of the Wadleys, when they reached the car, Edmund Wadley being the first person to get there, the...