Mccrackin v. Mckinney

• Decision Date: 01 February 1936
• Docket Number: No. 24673.,24673.
• Parties: McCRACKIN et al. v. McKINNEY.
• Court: Georgia Court of Appeals

52 Ga.App. 519

183 S.E. 831

McCRACKIN et al.

v.McKINNEY.

No. 24673.

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1936

.

Syllabus by Editorial Staff.

Error from City Court of Hall County; B. F. Whelchel, Judge.

Suit by Omie McKinney against J. W. McCrackin and others. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

Bryan, Middlebrooks & Carter, of Atlanta, and Sloan & Whelchel, of Gainesville, for plaintiffs in error.

Wheeler & Kenyon, of Gainesville, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. In this suit by the mother of a 6 year old child to recover for his death from being struck by an automobile kept by one of the defendants for the business and pleasure of such owner's family and driven by the other defendant, an adult daughter, the verdict for the plaintiff was authorized under the conflicting evidence as to the driver's negligence and the undisputed evidence as to the purpose and use of the automobile. The verdict was also authorized upon the questions as to whether the child of 6 years exercised such due care as his mental and physical capacity fitted him for exercising in the actual circumstances of the occasion and situation and as to the proximate cause of the homicide. See, as to the liability of a father keeping a car for the use of his family, for negligence by an adult son or daughter, Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167; Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A.1916F, 216, Ann. Cas.l917D, 994; Kennedy v. Manis, 46 Ga.App. 808, 169 S.E. 319; and, as to the care required of a child, Crawford v. So. Ry. Co., 106 Ga. 870 (2), 33 S.E. 826; Smith v. Kleinberg, 49 Ga.App. 194, 174 S.E. 731, and citations; Williams v. Jones, 26 Ga.App. 558, 559, 106 S.E. 616; Eddie-man v. Askew, 50 Ga.App. 540, 179 S.E. 247.

2. The defendants in their answer not only denied the plaintiff's allegations, but pleaded that the negligence of the child in running from the sidewalk into the street in the path of their automobile, after becoming frightened by a dog, was the proximate and sole cause of the injury. Exception is taken to the charge of the court to the jury, that "when the defendants deny an allegation made by the plaintiff, the burden rests upon the plaintiff to establish the truth of such allegations as may be denied by the defendants; but where the defendants set up an affirmative defense, the burden rests upon the defendants to establish the truth of such affirmative defense by a preponderance of evidence." This case is analogous to Stewart v. Mynatt, 135 Ga. 637 (2), 638, 70 S.E. 325, 326, where the Supreme Court held that it was not error to charge that "the burden is on the defendants to establish by a preponderance of the testimony that the plaintiff is guilty of any negligence which caused her injuries, " and that "this is not a case where the plaintiff alleged certain acts of negligence on the part of the defendants, whereby the plaintiff was injured and damaged as specifically set forth, and where the defendants merely denied all of plaintiff's allegations in respect to the defendant's negligence and as to plaintiff's injuries, which would be in effect a plea of the general issue. In that kind of a case evidence in behalf of the defendant, which would equally balance the plaintiff's evidence, would be sufficient to defeat the action. In the case now before us the defendants not only denied all the material allegations in the plaintiff's petition, but set up an affirmative defense that the plaintiff's injuries, if any, were caused by her own negligence. Therefore, in accordance with the rule that 'the burden of proof generally lies upon the party asserting or affirming a fact, and to the existence of whose case or defense the proving of such fact is essential' (Civ.Code 1910, § 5746 [Code 1933, § 38-103]), the burden rested upon the defendants, after the plaintiff had made put a prima facie case, to show by a preponderance of the evidence, in order to sustain their plea, that the plaintiff's injuries were caused by her own negligence. When the plaintiff submitted evidence of the negligence of the defendants, as alleged in her petition, and that her injuries as set forth were caused thereby, and such evidence was sufficient to take the case to the jury, then she made out a prima facie case, and was not bound to go further and show her own diligence. Whether or not by the exercise of ordinary care the plaintiff could have prevented the injuries was a matter of defense." (Italics ours.)

The rule that the burden is on the defendant to establish his defense of contributory negligence on the part of the plaintiff, such as would bar a recovery, would not impose upon him such a duty in a case where the plaintiff himself had failed to make out a prima facie case, by failing to show negligence on the part of the defendant as alleged or by himself showing his own contributory negligence. In a case such as that, the plaintiff would have failed, irrespective of any affirmative defense which the defendant might or might not have offered. But where, as here, the evidence is sufficient to raise an issue for the jury, and such issue is in fact submitted to the jury upon the question of the defendant's negligence, then, in order for the defendant to avail himself of the affirmative defense of contributory negligence, it is incumbent upon him to prove it, and this is true even though he does not in his own pleadings confess his negligence as charged. Williams v. Southern Ry. Co., 126 Ga. 710, 55 S.E. 948; Western & Atlantic R. Co. v. Casteel, 138 Ga. 579 (2), 580, 75 S.E. 609; City Council of Augusta v. Hudson, 88 Ga. 599 (3), 15 S.E. 678; Great Cosmopolitan Shows v. Petty, 7 Ga.App. 236, 66 S.E. 624; O'Dowd v. Newnham, 13 Ga.App. 220 (6), 232, 80 S.E. 36; Jackson v. Mcrritt Hardware Co., 26 Ga.App. 747 (3-b), 107 S.E. 394; Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 713, 181 S.E. 315; Pollard v. Gorman, 52 Ga.App. --, 182 S.E. 678. These general rules are in conformity to those obtaining in the great majority of other jurisdictions. See notes in 33 L.R.A.(N.S.) 1085, 1158, et seq.; 45 C. J. 1115, 1117, and citations; 20 R.C.L. 196, 197, and citations. The language of the charge, being in conformity to the rule as stated by the Supreme Court in the Stewart Case, supra, and a prima facie case having been shown and submitted to the jury, the exception taken to the instruction is without merit.

3. The judge charges as follows: "The driver of the automobile is bound to use reasonable care to anticipate the presence on the streets of others having equal rights with himself to be there; and a pedestrian when lawfully using the public highways is not bound to be continually looking and listening to ascertain if auto-mobiles are approaching, under the penalty that, if he fails to do so and is injured, he must be conclusively presumed to be negligent. All that is required of a pedestrian in the street, that is one walking in a street, is to exercise ordinary care and diligence for his own preservation and protection." Exception is taken to this as an incorrect statement of the law applicable to an automobile driver and a pedestrian, for the reason that each has an equal right to the use of a public highway and as giving to the plaintiff's child "a superior right to the use of the highway." In Quick Tire Service, Inc., v. Ball, 34 Ga.App. 122, 128 S.E. 205, 206, a charge expressed in similar language, but using the words, "presumed to be negligent, " instead of "conclusively presumed to be negligent, " was held not subject to an exception that it "amounted to an expression of opinion

* * * that the failure of a pedestrian to be continually looking and listening

* * * would not constitute negligence." The court further expressed the view that, although the instruction "is a correct statement of the law, " being taken from the decision in O'Dowd v. Newnham, supra, "it might possibly be calculated to mislead the jury into believing that the plaintiff could not, under such circumstances, be found to be negligent as a matter of fact." It was said, however, that this was "a question not presented for decision, " and that the quoted observations were made "merely in order to prevent any misapprehension that we approve the excerpt as proper." While it is often true, as of the instant instruction, that a quotation from an appellate court decision may be entirely...