Rice v. Matthews
| Decision Date | 06 October 1961 |
| Docket Number | No. 39073,No. 3,39073,3 |
| Citation | 122 S.E.2d 175,104 Ga.App. 593 |
| Parties | E. J. RICE et al. v. Fannie MATTHEWS, Administratrix |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The first grant of a new trial, unless upon discretionary grounds, is reviewable by this court.
2. If it appears that there was any expression or intimation of opinion concerning the facts, the grant of a new trial upon that ground will not be disturbed.
J. L. Matthews brought suit in Fulton Superior Court for damages, alleging that he was seriously injured when the automobile of Edward J. Rice, driven by his wife, Jean Rice, struck him as he was pushing a cart along the street. After suit was filed he died, and his administratrix was substituted as party plaintiff. There was a sharp conflict in the evidence as to whether Matthews was walking along the street near and parallel to the curb, or whether he was crossing diagonally near the middle of the block. Mrs. Rice testified that he was crossing diagonally and that he came into her view and in front of her suddenly at a distance of some eight or ten feet, that she immediately applied the brakes, but did not have time in which to stop before striking the cart. The accident occurred at about 6:10 p. m. on January 15, when it was already dark and misting rain. In the course of his charge the court stated to the jury that: 'One who knowingly and voluntarily takes a risk of injury to his person the danger of which is so obvious that no person of ordinary prudence would subject himself thereto cannot hold another liable for damages for the injuries thus occasioned.' The jury returned a verdict for the defendant, and plaintiff moved for a new trial, afterwards amending the motion by adding twelve special grounds. Upon a consideration of the motion the trial judge sustained it upon special grounds 5, 6, 7 and 8, in all of which error was assigned on the portion of the charge quoted above, contending, among other things, that it amounted to the expression of an opinion by the court that Matthews had observed a peril and, having observed it, proceeded recklessly to test it. All other grounds of the motion were overruled. Error is here assigned on the granting of a new trial on these special grounds.
Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, C. B. Rogers, Atlanta, for plaintiffs in error.
Augustine Sams, Emory Kinard, Atlanta, for defendant in error.
1. Since the new trial here was...
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...power to review a grant of a new trial when the order is limited to special grounds. Code Ann. §§ 6-1608 and 81A-150(c); Rice v. Mattews, 104 Ga.App. 593, 122 S.E.2d 175; Southern States, Inc. v. Thomason, 128 Ga.App. 667(1), 197 S.E.2d 429. 5. We next address ourselves to the effect of a n......
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