Roper v. Scott, 31956.

• Decision Date: 20 May 1948
• Docket Number: No. 31956.,31956.
• Citation: 48 S.E.2d 118
• Parties: ROPER. v. SCOTT.
• Court: Georgia Court of Appeals

48 S.E.2d 118

ROPER.

v.SCOTT.

No. 31956.

Court of Appeals of Georgia, Division No. 2.

May 20, 1948.

Syllabus by the Court.

1. The evidence sustains the verdict insofar as the general grounds are concerned.

2. Admissions generally refer to civil actions, confessions to criminal cases. Where a civil action is instituted for damages on the grounds of negligence, for the violation of penal ordinances or statutes, and the defendant has previously confessed or pled guilty to the violation of such penal statutes whether it be in or out of court, these confessions are competent evidence as admissions against him in the civil action with reference to the same transaction; and on cross-examination it is competent for the opposite party to inquire of the defendant if he made such confessions. If he admits in the civil action having made such confessions, it is unnecessary to produce an authenticated copy of the proceedings in the criminal case and such admissions may be considered in determining the civil action.

Error from Superior Court, Fulton County; Frank A. Hooper, Judge.

Suit by W. G. Scott against A. L. Roper to recover damages sustained when plaintiff was struck by automobile driven by defendant. To review a judgment for the plaintiff, the defendant brings error.

Judgment affirmed.

W. G. Scott, whom we shall call the plaintiff, entered suit against A. L. Roper, whom we shall call the defendant, seeking to recover damages in amount of $25,000. Without going into details with reference to the allegations of the petition, it was briefly and substantially alleged that about 1:3'cl0 oock a. m., the plaintiff, while operating his taxicab, carried two passengers to the Biltmore Hotel on West Peachtree Street in the City of Atlanta. As he approached the hotel he was driving North. He stopped his taxicab within five or six feet from the sidewalk in the offset entrance in the street to the Biltmore Hotel's main entrance. The passengers alighted from the car and went inside the hotel. They remained in the hotel for several minutes. The plaintiff not having collected the fare, got out of his taxicab on the left hand side, while the passengers were in the hotel. While the plaintiff was standing against his taxicab, and just after he had reached over into his car and turned off the ignition, the defendant travelling also northward on West Peachtree Street, drove his car in an angling direction and struck the plaintiff and pinned him against his taxicab, thereby knocking the plaintiff against his taxicab and down onto the street, inflicting serious personal injuries. It is alleged that West Peachtree Street at this point is approximately 80 feet wide and there was no occasion for the defendant to strike the plaintiff and his car except for the negligent acts alleged. The suit was originally brought against the Yarborough Motor Company and the defendant. There are certain acts of negligence alleged against the Yarborough Motor Company which we will not go into since the Yarborough Motor Company was stricken as a defendant. The acts of negligence alleged against the defendant were

(a) that he was operating the automobile at the time of the alleged injury under the influence of whiskey in violation of the laws of the State of Georgia and also of the ordinance of the City of Atlanta;

(b) that the defendant was not keeping a lookout ahead of him in the direction in which he was travelling; (c) that he was operating the car in violation of the ordinance of the City of Atlanta as follows: "Any person driving a vehicle or street car shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard for the traffic, surface and width of the street and any other condition then existing, and no person shall drive any vehicle at such speed as to endanger the life, limb or property of any person. However, in no case shall the speed of a vehicle exceed 25 miles per hour * * *" (d) that he was operating the automobile in violation of another ordinance of the City of Atlanta as follows: "Any person who drives any vehicle upon a highway carelessly and heedlessly, in disregard of the rights or safety of others, or without due caution and circumspection, and at such speed or in such manner as to endanger or to be likely to endanger any person or property, shall be guilty of reckless driving * * *"

(e) that he failed to apply his brakes in sufficient time to avoid striking the plaintiff; (f) that the defendant ran his automobile against the plaintiff with great force and violence.

The defendant filed an answer denying all the material allegations of the petition and further pled: (a) that if the plaintiff was injured by the operation of the defendant's automobile, the contact of the defendant's automobile with the plaintiff's person was occasioned as a result of the negligence of the plaintiff for that the plaintiff walked into the side of the defendant's automobile; (b) that the plaintiff alighted from his taxicab on its left side, the side towards traffic, without taking ordinary care for the safety and preservation of his own person; (c) that the plaintiff alighted from his taxicab without giving notice of his intention so to do and with wanton disregard of his own safety he walked into the line of traffic without exercising ordinary care under the circumstances; (d) that the plaintiff was negligent in that he had the chance to avoid the consequences of the alleged negligence of the defendant; that the negligence of the plaintiff in disregarding this opportunity was the sole and proximate cause of such injury as he may have sustained.

On the trial of the case the jury returned a verdict in favor of the plaintiff for $15,000. The defendant filed a motion for a new trial on the general grounds and thereafter added four special grounds. The court overruled the amended motion and it is on this judgment that error is assigned here.

Woodruff & Etheridge and Philip Ethe-ridge, all of Atlanta, for plaintiff in error.

Geo. & John L. Westmoreland and J. Ralph McClelland, Jr., all of Atlanta, for defendant in error.

GARDNER, Judge.

1. While the evidence is conflicting in some respects, it abundantly sustains the verdict for the plaintiff. Under the evidence the jury were authorized to find, under all the facts and circumstances, that the defendant was in clear violation of the ordinances of the City of Atlanta and they were authorized to find that the defendant was operating his automobile under the influence of intoxicating liquors. They were authorized to find that some one or more of the acts of negligence alleged and proved were the sole approximate cause of the injuries which the plaintiff alleged and proved that he received.

The court charged the principle of law as to apportionment of damages. It may reasonably be said under this record that conceding that the jury considered the plaintiff negligent in some degree, he was less negligent than the defendant. So far as the general grounds are concerned, they are without merit. This brings us to a consideration of the special grounds, which we will consider in their order.

2. Since the special grounds are so closely related, we will first set them out substantially and discuss them afterwards. Special ground 1 assigns error for the reason that...