Roseberry v. Freeman

• Decision Date: 08 April 1958
• Docket Number: No. 37027,No. 1,37027,1
• Citation: 103 S.E.2d 745,97 Ga.App. 545
• Parties: ROSEBERRY et al. v. FREEMAN
• Court: Georgia Court of Appeals

Page 745

103 S.E.2d 745

97 Ga.App. 545

ROSEBERRY et al. v. FREEMAN.

No. 37027.

Court of Appeals of Georgia, Division No. 1.

April 8, 1958.

Rehearing Denied April 24, 1958.

Syllabus by the Court

1. Where there is an excavation extending from the property line across the walkway, leaving only an eighteen-inch ledge, it cannot be held as a matter of law that such ledge is a sidewalk, within the contemplation of Code, § 68-1660, or that in such circumstances it was practical for the plaintiff to walk so as to face approaching traffic.

2. Whether a plaintiff's failure to exercise ordinary care arises out of simple negligence or is negligence per se, stemming from the infraction of a public statute, his duty to discover and avoid the consequences of the defendant's negligence is the same.

3. (a) A ground which does not purport to set out, state the substance, or specify all of the evidence submitted on an issue and necessary to a clear understanding of the exception it takes to a charge is as incomplete as if it contained or specified none of the evidence.

(b) Right of way as defined by the statute means 'the privilege of immediate use of the road way.' Code, § 68-1504.

4. A ground which complains that a correct charge of the court failed to instruct the jury as to other legal principles pertinent to the issues of the case is without merit, particularly when elsewhere in the charge the very principles which the defendants complain were omitted from the quoted excerpt of the charge were fully and correctly stated.

5. An excerpt from the court's charge which merely alludes to a defense interposed by the defendants does not exclude the defense from the consideration of the jury, where elsewhere in the charge the jury is instructed in reference to it.

6. There is no error in refusing to give an incorrect charge to the jury.

7. The seventh division of the opinion is so succinctly stated that no headnote corresponding numerically to that division is necessary.

8. (a) It is not reversible error to admit evidence when evidence of similar nature and import has been admitted without objection.

(b) In an action to recover for an injury to the plaintiff's ankle alleged to have been proximately caused by the negligence of the defendants, evidence is admissible as to the effect of the injury, including proof that it has resulted in a traumatic arthritis. Central Railroad Co. v. Mitchell, 63 Ga. 173(2); Atlanta Ry. & Power Co. v. Maddox 117 Ga. 181, 43 S.E. 425; Southern Bell Telephone Co v. Lynch, 95 Ga. 529, 20 S.E. 500.

Mrs. Samuel A. Freeman filed a suit against Mr. and Mrs. R. O. Roseberry for damages resulting from a collision between the plaintiff and an automobile driven by Mrs. R. O. Roseberry.

The petition alleged in part that: Long Island Drive, in front of Liberty Guinn School, is a public street in Fulton County, Georgia, running approximately in an eastwest direction, which during school hours and particularly during the period from 8:30 to 9:30 a. m. is a heavily traveled and congested traffic area; immediately adjacent to and paralleling the south side of the street in front of the school, there is a gravel sidewalk approximately four feet in width; on the 17th day of September, 1954, at approximately 8:45 in the morning, the plaintiff, with her six year old son, was walking in an easterly direction, approaching the front of the school; at this time, there was a hole being dug in the sidewalk, and on the sidewalk, and on the side of the hole nearest Mrs. Freeman there was a sawhorse across the sidewalk, leaving a narrow strip of approximately eighteen inches in width at the curb for passage; as the plaintiff came to this obstruction in front of the school she stepped down off the curb and began to walk along the curb within one foot thereof and with her small son proceeding by her side on the eighteen-inch area left around the obstruction; after the plaintiff has proceeded for several feet along the curb, she was suddenly and without warning struck in the rear by an automobile driven by the defendant, Mrs. R. O. Roseberry; at the time of the accident, the defendant, Mrs. Roseberry, was not looking forward through her windshield and in the direction in which she was proceeding but was looking to her left and through the window of the automobile; as a result of being struck in the rear by the automobile Mrs. Freeman was thrown forward and to the pavement, falling across the curb; after striking the plaintiff, the defendant, Mrs. Roseberry negligently failed to heed the warnings of bystanders and continued forward and ran over and upon the right foot and leg of the plaintiff, with her right front wheel coming to rest upon the plaintiff's right leg; after the wheel of the defendant's car had remained upon the plaintiff's leg for a period of approximately thirty seconds, the defendant did then back her automobile off the plaintiff's leg, the wheel again passing over the plaintiff's ankle and foot; the defendant Mrs. Roseberry was negligent in the following particulars: (a) in failing to keep a lookout ahead of her automobile; (b) in failing to observe the plaintiff walking along the street as herein set out; (c) in failing to yield the right of way to the plaintiff who was already in the street upon the approach of the defendant's automobile; (d) in failing to stop her automobile before striking the plaintiff; (e) in failing to heed the warnings of bystanders and in failing to stop before her automobile had run onto the plaintiff's leg; the automobile driven by the defendant, Mrs. Reseberry, was furnished by the defendant Mr. Roseberry, for the use, enjoyment and benefit of his family, and was at the time of this accident being used with and in the scope of the purposes intended.

The defendants filed their answer in which they denied the material allegations as to Mrs. Roseberry's negligence and for further plea and answer alleged that: 'if plaintiff sustained injuries as claimed, which is denied, such injuries were caused by and resulted proximately from the negligence of the plaintiff; that plaintiff was not in the exercise of ordinary care for her own safety and by the exercise of ordinary care she could and should have avoided any injuries which she may have sustained.'

The plaintiff's testimony substantially supported the allegations of the petition except she did not profess to have seen the Roseberrys' automobile or to have observed the manner in which it was operated. Other witnesses testified that Mrs. Roseberry committed certain acts of negligence corresponding with those alleged in the petition. These witnesses gave evidence that Mrs. Roseberry was looking back and across the street as the automobile she was driving approached and struck the plaintiff, and not in the direction she was driving. Mrs. Roseberry testified that she did not see the plaintiff until the car she was driving touched the plaintiff's hip, though she denied that she was looking in a direction other than that in which she was driving.

The medical testimony submitted by the parties was in conflict, that of the plaintiff showing the severity of her injuries and their disabling effect was as alleged in the petition, and the defendants' evidence showing her injuries were not so severe and productive of a much less degree of disability. So much of the evidence as is necessary to a clear understanding of the points passed upon will be related and discussed in the opinion.

On the trial the jury returned a verdict in favor of the plaintiff. The defendants filed a motion for new trial which was denied. To this ruling exception is taken.

Greene & Neely, Harry L. Greene, Ferdinand Buckley, Atlanta, for plaintiffs in error.

Johnson, Hatcher & Meyerson, Harry M. Hatcher, Jr., Atlanta, for defendant in error.

QUILLIAN, Judge.

1. The plaintiffs in error, R. O. Roseberry and Mrs. R. O. Roseberry, will be referred to as the defendants, and Mrs. S. A. Freeman, defendant in error, as the plaintiff, the parties having occupied those respective positions in the trial court.

The defendants insist on only one of the general grounds of the motion for new trial, that the verdict was not supported by the evidence because the evidence adduced upon the trial demanded the conclusions: (a) that the plaintiff's negligence was the proximate cause of her injuries; (b) that she did not exercise ordinary care for her own safety or the same degree of care to discover the defendant's negligence or to avoid its consequences; (c) that the plaintiff was engaged in the commission of a criminal act when her injuries were sustained. The defendants insist that the plaintiff violated Code, § 68-1660 which provides: '(a) Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway. (b) Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction. (c) No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle. (Acts 1953, Nov.Sess. pp. 556, 593.)'

The evidence showed that a sidewalk was provided along the approach to the Liberty Guinn School, that while the plaintiff was traveling the same with her son of tender age whose hand she was holding, the two arrived at a point on the sidewalk where an excavation had been dug for some purpose in which men were working and before which was placed a sawhorse. The excavation extended from the inside of the sidewalk to within eighteen inches of its outer edge. When the plaintiff and her son approached she placed him on the curb and stepped down upon the edge of the street or roadway in order to pass around the excavation. According to several witnesses, when the plaintiff had reached a point equal with the excavation, she was struck down by the automobile...