Pollard v. Roberson

• Decision Date: 01 December 1939
• Docket Number: 27543,27544.
• Citation: 6 S.E.2d 203,61 Ga.App. 465
• Parties: POLLARD v. ROBERSON (two cases).
• Court: Georgia Court of Appeals

6 S.E.2d 203

61 Ga.App. 465

POLLARD v. ROBERSON (two cases).

Nos. 27543, 27544.

Court of Appeals of Georgia, Division No. 2.

December 1, 1939

Rehearing Denied Dec. 19, 1939.

Syllabus by the Court.

Mrs M. T. Roberson instituted two suits against H. D. Pollard as receiver of the Central of Georgia Railway Company; by one she sought to recover for personal injuries to herself and by the other to recover damages for the death of her husband, the injuries alleged to have been caused by the negligence of the defendant, as a result of which the car in which Mrs. Roberson was driving her husband to his daily work ran into the side of one of the engines of the defendant. The defendant's answer denied the material allegations of the petition and alleged that the injury was due to the failure of Mrs. Roberson and her husband to exercise ordinary care. Among other amendments, plaintiff filed one amendment changing an allegation in the original petition to the effect that the engine was traveling north in a forward movement to read that the engine was backing northward. The court allowed the amendment over objection. The jury found for the plaintiff. The defendant excepts to the allowance of the amendment and to the order overruling the amended motion for new trial.

John L. Tison, of Cedartown, and Matthews, Owens & Maddox, of Rome, for plaintiff in error.

J B. Edwards, of Cedartown, and Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

FELTON, Judge (after stating the foregoing facts).

1. The first ground of the amended motion for new trial presents no question for determination. As stated in the brief of counsel it is a mere recital that the two cases were tried together.

2. The second ground of the amended motion complains that the charge unduly stressed the contentions of the plaintiff and minimized the contentions of the defendant. As the case is reversed on other grounds and the error, if any, will not likely occur on another trial, the assignment of error will not be passed on.

3. It was error for the court to refuse to give in charge the following timely written request to charge: "If you find that it was so dark and foggy that Mrs. Roberson could not see in front of her automobile for any appreciable distance, you should take that, along with the speed at which she was driving, along with all the other evidence, into consideration in determining whether or not she was in the exercise of ordinary care, and if you find that by the exercise of ordinary care she could have avoided running into the train, and that her failure to use such care was the proximate cause of plaintiff's injuries, you should find for the defendant," for the reason that it was pertinent, applicable and adjusted to the pleadings and the evidence in both cases and not as fully given in the charge given. Broadwell v. Maxwell, 37 Ga.App. 686, 141 S.E. 326; Metropolitan Street Railway Co. v. Johnson, 90 Ga. 500(5), 16 S.E. 49; City of Rome v. Stone, 46 Ga.App. 259(7), 167 S.E. 325; Trammel v. Shirley, 38 Ga.App. 710, 722, 145 S.E. 486; W. & A. Railway Co. v. Thompson, 38 Ga.App. 599, 600, 144 S.E. 831. This refusal to give the requested charge was error in both cases. It was error in the case for damages for the death of her husband because as a matter of law the negligence of the driver, Mrs. Roberson, was imputable to her husband, who was riding in his own car for the purpose of going to work while the car was driven by Mrs. Roberson, who was also on her way to work at the same place. An amendment to the plaintiff's petition alleged that the denseness of fog and darkness of night were the reasons the driver could not see the approaching train on the track. Evidence was introduced to the effect that because of the denseness of the fog an object could not be seen more than 12 to 20 feet.

4. It was error to refuse to give in charge the following timely written request to charge: "The defendant contends that, in the exercise of ordinary care, Mrs. Roberson should have been driving the automobile, at the place and under the circumstances shown by the evidence, at such a rate of speed as to be able to stop within the distance she could see ahead. If you find that at the place where the collision occurred and under the circumstances existing at that time, that Mrs. Roberson, in the exercise of ordinary care, should have been driving at such a rate of speed that she could stop within the distance she could see ahead, and failed to do so, and that this was the proximate cause of the plaintiff's injuries, you should find for the defendant," because it was pertinent, applicable and adjusted to the pleadings and evidence in both cases and not as fully given in the charge actually given. The other reasons stated in division 3 of this opinion are also applicable to this division. And see citations in division 3 of this opinion. See also Reid v. Southern Ry. Co., 52 Ga.App. 508, 183 S.E. 849; 44 A.L.R. 1403; 58 A.L.R. 1493; 87 A.L.R. 900.

5. It was error, for the reasons given in divisions 3 and 4 of this opinion to refuse to give the following timely written request to charge: "Under the law, the driver of the automobile, Mrs. Roberson, owed a duty to the railroad company to exercise ordinary care in approaching and attempting to pass over the crossing; and in this connection I charge you that it was her duty on approaching this crossing to drive the automobile at such a rate of speed and to keep such a lookout ahead as would meet the requirements of ordinary care, taking into consideration all of the conditions existing at the time as may be shown by the evidence. If you find from the evidence that in the exercise of ordinary care, Mrs. Roberson could or should have seen that the train was on the crossing in time to have stopped the automobile before striking the train, or otherwise could have avoided running into the same, and that the failure to use such care was the proximate cause of the plaintiff's injuries, you should find in favor of the defendant."

6. It was not error to refuse to give in charge the following request to charge: "I charge you that it was the duty of Mrs. Roberson, as she approached the crossing, to use her sense of sight and hearing to ascertain whether the crossing was occupied, or was about to be occupied, at the time, by a train; so if you find under the evidence that she saw, or in the exercise of ordinary care she could have or should have seen or known that the train was on or near the crossing, and could have stopped or avoided running into the train, you should find for the defendant. The rule applies not only to what she actually saw, but to what she could have seen in the exercise of ordinary care." Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149; Central of Georgia Ry. Co. v. Leonard, 49 Ga.App. 689, 708, 176 S.E. 137, and cases cited in Collier v. Pollard, Ga.App., 2 S.E.2d 821.

7. It was error to refuse to give in charge the following timely written request: "The ordinary care which Mrs. Roberson was under a duty to exercise was that care which an ordinarily...