Pritchett v. Higgins
| Decision Date | 20 May 1965 |
| Docket Number | No. 41331,No. 2,41331,2 |
| Citation | 143 S.E.2d 47,111 Ga.App. 718 |
| Parties | Virginia PRITCHETT v. Wayne HIGGINS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The general grounds of the motion for new trial are without merit.
2. Failure to charge that the negligence, if any, of a host driver is not imputable to a guest in the car, no request having been made for the charge, is not error when there was no contention or issue in the case of any imputability.
3. It is not a good ground of a motion for new trial that the court, after giving one correct and applicable principle of law in the charge to the jury failed to give another in connection therewith which was not requested.
4. Excepts from the charge to the effect that if the plaintiff's injuries would have occurred regardless of the alleged acts of negligence on the part of the defendants, that the mere happening of the event alone does not authorize an inference of negligence, and that plaintiff must prove her case as laid and in order to impose liability on the defendants the jury must find that their negligence was the natural and proximate cause of plaintiff's injuries, are not subject to the construction that the court was charging on the theory of accident. This is particularly true in a consideration of the charge as a whole.
5. It is not error to fail to submit as contentions of the plaintiff allegations or specifications of negligence which are unsupported by any evidence.
6. Failure to submit unsupported contentions does not amount to an unlawful expression of opinion by the court.
Virginia Pritchett brought suit against Textile Trucking Company and Wayne Higgins, a driver of one of the company's trucks, seeking recovery of damages for injuries alleged to have been sustained when the truck struck a car in which she was a guest, operated by John Henry Settles, at the intersection of Northside Drive and McDaniel Street in Atlanta. She alleged that the Settles car was traveling south on Northside Drive, a street with three lanes of traffic in each direction, and that the driver came to a stop when he reached the McDaniel Street intersection, waited for traffic to clear, then turned left into McDaniel Street, and that just as he turned defendants' truck traveling north on Northside Drive struck the car, causing her to be thrown out into the street and injured. She alleged that the truck went through a red light at the intersection, was traveling at a fast and reckless speed, in excess of the 35 mile per hour applicable speed limit at that point, and that the driver did not have it under Proper and adequate control.
Defendants denied all allegations of the petition, save those which were jurisdictional and by amendment asserted that the sole proximate cause of plaintiff's injuries was the negligence of her host driver in failing to observe the applicable ordinance for the making of left turns on the streets of Atlanta.
The jury returned a verdict for the defendants, and to the overruling of her amended motion for new trial plaintiff excepts.
D. Eugene O'Brien, D. Gerald Ricci, Atlanta, for plaintiff in error.
A. Ed. Lane, Atlanta, for defendants in error.
1. The general grounds of the motion are without merit. There was ample evidence to support the verdict.
2. In special ground 4 of the amended motion error is assigned upon the failure of the court to charge, without request, that the negligence of the host driver, if any, was not imputable to the plaintiff who was a guest in the car. Imputability of the negligence of the host driver to a guest was not an issue in this case. It was not made by any pleading or evidence. Defendants made no contention of imputability; rather they contended that the sole proximate cause of plaintiff's injuries was the negligence of the host driver. On that issue the court gave a full and fair charge. 'The trial judge is not required to charge provisions of law about which there is no issue, especially when the entire charge so fully and fairly presents the real issue in controversy as to leave no reasonable ground for apprehending that the jury did not understand the law of the case.' Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330(3), 155 S.E. 321. 'Failure of the trial judge to give a particular instruction to the jury, which the losing party in his motion for new trial, contends should have been given, is not cause for a new trial, even if such instruction would have been abstractly correct, if neither the pleadings nor the evidence in the case required it to be submitted to the jury.' Friedman v. Goodman, 124 Ga. 532(2), 52 S.E. 892.
3. In special ground 5 error is assigned upon the failure of the court, without request, to charge that the negligence, if any, of the host driver was not imputable to the guest, in connection with a charge that in order to find a verdict against the defendants they must find that they were negligent in some respect charged in the petition and that their negligence was the proximate cause or concurred in being the proximate cause of plaintiff's injuries. 'It has been repeatedly held by both this court and by the Supreme Court that an instruction correct in and of itself is not rendered erroneous by the mere failure of the trial court to give in connection therewith also another pertinent and legal instruction.' Burton & Class v. Connell, 84 Ga.App. 106, 109(2), 65 S.E.2d 620, 622. Thus, even if the pleadings or the evidence had sufficiently raised the issue of imputability to render a charge on that principle pertinent, no error is shown by this assignment.
4. Headnote 4 needs no elaboration.
5. One of the specifications of negligence charged against the defendants was a violation of the applicable speed limit of 35 miles per hour as fixed by a city ordinance. The only evidence in support of this charge was testimony of a witness who had approached the intersection on McDaniel Street ant stopped his car to await a change of the traffic light. He testified that it...
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