Pope v. Associated Cab Co.

• Decision Date: 16 July 1954
• Docket Number: No. 35235,No. 2,35235,2
• Citation: Pope v. Associated Cab Co., 90 Ga.App. 560, 83 S.E.2d 310 (Ga. App. 1954)
• Parties: POPE v. ASSOCIATED CAB CO
• Court: Georgia Court of Appeals

Page 310

83 S.E.2d 310

90 Ga.App. 560

POPE v. ASSOCIATED CAB CO.

No. 35235.

Court of Appeals of Georgia, Division No. 2.

July 16, 1954.

Rehearing Denied July 28, 1954.

Syllabus by the Court.

1. The evidence being such as to authorize the jury to find that the plaintiff knew of the negligence of the driver of the defendant's taxicab, the question of whether she could or should have done or said anything to have prevented her resultant injuries is a proper one for jury determination. Accordingly, the trial court did not err in charging the jury in substance that if the plaintiff was negligent in failing to avoid the consequences of the defendant's negligence, if any, and was thereby injured, she could not recover.

2. 'Where a statute expressly enjoins an act, the act is then within all degrees of diligence, even the very lowest, and its omission is negligence as a matter of law.' It is for the jury to determine under the evidence as a matter of fact whether a valid statute or ordinance is violated, and, if so, whether this proximately caused the injuries to the plaintiff, but the jury cannot pass on the question of whether or not the violation thereof constitutes negligence, that question being fixed as a matter of law. Accordingly, the trial court erred in charging the jury in substance that if the defendant was found to be negligent per se it was their duty to go further and determine whether such negligence constituted 'slight negligence within the definition of that term as given in the charge of the court.'

3. The ruling of the trial court excluding the testimony of a witness offered by the plaintiff and objected to by the defendant, regarding a telephone conversation, having some materiality to the issue, was error for the reasons set forth in the corresponding division of this opinion.

Gertrude C. Pope filed an action in the Superior Court of Fulton County for injuries sustained by herself while a passenger in one of the taxicabs of the defendant Associated Cab Company. The defendant answered denying all the material allegations of the petition. Upon the trial of the case a verdict was returned in favor of the defendant. The plaintiff made a motion for a new trial on the general grounds which was later amended by the addition of three special grounds, and the overruling of this motion is assigned as error.

Garland & Alaimo, Roscoe Pickett, Atlanta, for plaintiff in error.

E. Harold Sheats and Paul B. Huckeby, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. The first special ground contends that it was error for the court to charge in substance that if the plaintiff, who was a passenger in the defendant's taxicab, was negligent in failing to avoid the consequences of the defendant's negligence, if any, and was then injured, she could not recover, on the ground that the charge, although correct as an abstract proposition of law, was not supported by any evidence, that it intimated to the jury that they would be authorized to find the plaintiff negligent, and misled them into believing that there was evidence as to negligence on her part.

Where there is no evidence from which the inference may fairly arise that a plaintiff who is a passenger in the car of another and owes no duty to supervise the driving of the person operating the vehicle, see East Tennessee V. & G. Ry. Co. v. Markens, 88 Ga. 60(2), 13 S.E. 855, 14 L.R.A. 281, has reason to distrust the driver's ability, or that the driver was her agent and under her control, or that she was not in the exercise of ordinary care for her own safety under the circumstances, it is error to give in charge the principle of law complained of. Bellamy v. Georgia Power Co., 67 Ga.App. 569, 21 S.E.2d 294; Toles v. Hair, 83 Ga.App. 144(1), 63 S.E.2d 3. However, 'to justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.' Holland v. Long, 57 Ga. 36, 41(3); King v. State, 77 Ga.App. 539, 540, 49 S.E.2d 196. In this case, the only evidence tending to show negligence on the part of the defendant was that its employee, the driver of the taxicab, was travelling 45 miles an hour in a zone having a 25 mile per hour speed limit, and that he made a sudden stop, explaining to the plaintiff that it was necessary to do so to avoid hitting a truck which had turned out in front of him. The plaintiff, who testified to the speed of the automobile, knew what it was. She also testified that she was late for work that morning and was in a hurry. The driver may or may not have known of this fact; the evidence is silent on this subject. He was, however, being hired to transport her, and the jury might have inferred that the speed of the automobile (the sole ground on which liability against the defendant may be predicated) was in response to her own wishes, or at least that she knew of the speed and in the exercise of ordinary care under the circumstances should have protested. In consequence, a charge on this subject was not error, and this ground is without merit.

2. Special ground two complains of an excerpt from the charge of the court as follows: 'If you find that the defendant was negligent per se * * * you will determine whether or not, under all of the evidence and circumstances in this case, that negligence, if it existed, constituted slight...