Rome Ry. & Light Co. v. King
| Decision Date | 17 January 1925 |
| Docket Number | 15564. |
| Citation | 126 S.E. 294,33 Ga.App. 383 |
| Parties | ROME RY. & LIGHT CO. v. KING. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The verdict for the plaintiff was authorized under evidence in support of the essential averments; and this court feels unauthorized to set it aside upon any of the exceptions to certain excerpts from the charge of the court or on the failure to charge.
Additional Syllabus by Editorial Staff.
Trial judge should give appropriate instructions on every substantial vital and controlling issue presented.
Where judge has fairly and correctly instructed jury, party desiring more specific and concrete instructions as to one of his contentions, or definition or more detailed explanation of general technical or legal words or phrases, should make timely written request therefor.
A correct charge is not erroneous because of omission to charge in same connection additional pertinent legal proposition.
Where judge charges on certain subject, although it be one which is unnecessary in absence of request, he must charge all law on that subject that is material to facts.
Where court charged that direct and proximate cause of plaintiff's injury was "intervening cause of driver of automobile and his negligence," and later charged that if intervening cause caused injury then plaintiff could not recover, charge that preponderance of testimony meant outweighing of testimony, and that, if plaintiff had carried burden and proved herself free from fault, then she could recover, was not erroneous as charging that proof of defendant's negligence authorized recovery irrespective of whether injury was natural result therefrom, even though it was caused by individual agency.
Where there is a conflict between bill of exceptions and record as to matters which form part of record, latter will control.
Where charge that jury could consider witnesses' manner and demeanor, their interest or want thereof, opportunity to know facts, and inducement they might have, if any, to swear falsely, was not given in connection with instruction on preponderance of evidence under Civ. Code 1910, § 5732 omission to state in connection with rules given determining credibility, other rules of section 5732, as to preponderance of evidence, was not erroneous, in absence of written request therefor.
Omission to charge that plaintiff could not recover on acts of negligence other than those set out in petition, and that defendant was bound to show exercise of ordinary care only in respect to acts alleged by plaintiff to be negligence, was not erroneous, in absence of written request therefor.
In view of preceding language specifically charging contentions and language following whether plaintiff by exercise of ordinary care could have avoided her injury, any error, in charge that jury could look and see whether defendant used toward plaintiff ordinary care, and if they did to find for defendant, and if not then to see what negligence consisted of, was without injury.
Where court on charge of proximate cause followed phraseology of defendant's plea, there was no error in its failure to define meaning of term within Civ. Code 1910, §§ 4508, 4509, 4510, in absence of written request therefor.
In view of preceding and following charges and Civ. Code 1910, § 4426, charge, that plaintiff could not recover, if by exercise of ordinary care she could have avoided injury, did not put burden on defendant of showing that she could have avoided injury.
Charges that, if proximate cause of injury was not defendant's negligence, but was intervening cause by third party, and if there was no direct and proximate cause because of intervening party, mere fact third party was negligent did not bar right of plaintiff to sue defendant for her injuries provided it was liable, held not to place on defendant burden of showing its negligence was not proximate cause and injury was from intervening act of separate agency.
Error from Superior Court, Floyd County; Moses Wright, Judge.
Action by Sadie King against the Rome Railway & Light Company. Judgment for plaintiff, and defendant brings error. Affirmed.
See also, 30 Ga.App. 231, 117 S.E. 464.
Lamar Camp and L. A. Dean, both of Rome, for plaintiff in error.
Hooper Alexander, of Atlanta, and Porter & Mebane, of Rome, for defendant in error.
1. On a former bill of exceptions it was held that the petition for damages against the defendant street railway company, on account of personal injuries to the plaintiff in being run down by an automobile while attempting to board the defendant's car, set forth a cause of action by reason of the alleged negligence of the defendant company in requiring its passengers to enter on the left side of its cars (despite the fact that a city ordinance required vehicles in meeting street cars to pass on this, the left, side of the car, and prohibited such vehicles, in following street cars on the right side to pass them, but required them to come to a stop while a street car was engaged in putting off or taking on passengers), and in carrying a peculiarly dazzling electric headlight, contrary to a city ordinance. See 30 Ga.App. 231, 117 S.E. 464, where a statement of the facts and contentions in the case is set forth.
2. It is the settled general rule that a trial judge, whether requested in writing or not, should give to the jury appropriate instructions on every substantial, vital, and controlling issue presented by the pleadings and evidence. Mobley v. Merchants' & Planters' Bank, 157 Ga. 658, 122 S.E. 233 (1); Walker v. State, 122 Ga. 747 (2), 50 S.E. 994; Florence v. Byrd, 28 Ga.App. 695 (1), 113 S.E. 227; 1 Stevens' Dig. Ga. R. 407; 7 Enc. Dig. Ga. Rep. Cum. Supp. 476-478, and cases cited. But it is also the established general rule that, where the judge has thus fairly and correctly instructed the jury, a party who desires more specific and concrete instructions as to one of his contentions, or a definition or more detailed explanation of general technical or legal words or phrases, should make in writing a timely request therefor. Smith v. Brinson, 145 Ga. 406, 89 S.E. 363; Holmes v. Clisby, 121 Ga. 241 (7), 48 S.E. 934, 104 Am.St.Rep. 103; Bullard v. Metropolitan Life Ins. Co., 31 Ga.App. 641 (3), 642, 122 S.E. 75; Weldon v. State, 21 Ga.App. 330 (1 [e]), 94 S.E. 326; 7 Enc. Dig. Cum. Supp. 480-483.
3. A correct charge is not to be characterized as erroneous because of an omission by the court to charge in the same connection an additional pertinent legal proposition. Tucker v. Cen. of Ga. Ry. Co., 122 Ga. 387 (5), 50 S.E. 128; Wilson v. Small, 28 Ga.App. 587, 591, 592, 113 S.E. 238; International Cotton Mills v. Mobley, 30 Ga.App. 781 (5), 783, 119 S.E. 467; Lovelace v. Reliable Garage, 33 Ga.App. 289, 125 S.E. 877 (3 [a]). Accordingly, "an exception to a correct charge because of failure to give in the same connection some other pertinent legal proposition is not a good assignment of error." Hicks v. State, 146 Ga. 221 (6), 91 S.E. 57. But such an instruction should be in itself "complete, accurate, and pertinent" with reference to the particular legal rule stated, and "where the judge undertakes to charge upon a certain subject, although it be one upon which it is unnecessary, in the absence of a request, to instruct the jury, he must charge all the law upon that subject that is material to the facts of the case." Persons v. State, 27 Ga.App. 592 (3), 109 S.E. 533; Lucas v. State, 110 Ga. 756, 36 S.E. 87; Savannah Electric Co. v. Thomas, 30 Ga.App. 405, 418, 118 S.E. 481.
The grounds of the defendant's motion for new trial dealt with in this division of the opinion involve an application of the foregoing general principles.
(a) Exception is taken in ground 4 to the following excerpt:
Error is assigned because this was an instruction that "proof of negligence on the part of the defendant would authorize a recovery in plaintiff's favor, irrespective of whether her injury was the natural and legal result of defendant's negligence," and even though it "may have been caused by an agency entirely independent of defendant's negligence." Preceding this charge the court had stated the defendant's special contention, as pleaded, that "the direct and proximate cause of Mrs. King's injury was the intervening cause of the driver of the automobile and his negligence," and later charged, "if you should find that the direct and proximate cause of this injury was not the negligence of the defendant, but was a separate intervening cause generated by a third party, then I charge you in that event the plaintiff could not recover, and your verdict ought to be for the defendant," and this instruction was elaborated. As was said in the former ruling in this case:
"The question as to what constitutes the proximate cause of an injury * * * may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to." 30 Ga.App. 231 (2, 4), 117 S.E. 464.
And since this principle of law as applicable to the instant case was clearly set forth by the charge, the fact that in charging upon the other and different question relating to the preponderance of evidence the court did not again repeat the principle thus already fully dealt with by the...
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