Scarborough v. Walton

• Decision Date: 14 February 1927
• Docket Number: 17265.
• Citation: 136 S.E. 830,36 Ga.App. 428
• Parties: SCARBOROUGH et al. v. WALTON.
• Court: Georgia Court of Appeals

136 S.E. 830

36 Ga.App. 428

SCARBOROUGH et al. v. WALTON.

No. 17265.

Court of Appeals of Georgia, Second Division

February 14, 1927

Syllabus by the Court.

The court, in charging the jury upon the subject of comparative negligence, instructed them that under certain conditions the plaintiff would be entitled to recover, but that the recovery should be reduced in proportion to the amount of the negligence attributable to him. Held, this charge in using the word "should" instead of "shall," did not insufficiently present to the jury the imperative requirement of the Code in reference to the plaintiff's diminution of the damage in a case involving the law of comparative negligence.

After all other instructions to the jury had been concluded, the court, as to one of the defendants, charged the jury that, if they should find that the defendant did a certain act in driving the automobile at the time and place in question, and should further find that this act was negligent, "then the plaintiff would be entitled to recover from the defendant, under the rules of law as otherwise given you in charge." Held, this excerpt, when considered in connection with the other instructions given, was not calculated to mislead the jury, and hence was not cause for a new trial. See City of Augusta v. Tharpe, 113 Ga 152(2), 38 S.E. 389; Payne v. Allen, 28 Ga.App 8(5a), 110 S.E. 345.

Under the act of October 14, 1891 (Ga. L. 1890-91, p. 78; Civil Code 1910, § 5879), in the trial of all civil cases any party may call an opposite party to the witness stand and cross-examine him as though the witness had testified in his own behalf, and was being cross-examined, and may do so without entitling counsel for any opposite party or parties as a matter of absolute right, to cross-examine such witness.

(a) The court did not err in overruling the defendant's motion for a new trial.

Error from City Court of Macon; C. H. Hall, Judge.

Action by J. S. Walton, by next friend, against F. F. Scarborough and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Brock, Sparks & Russell, of Macon, for plaintiffs in error.

Robt. W. Barnes, of Miami, Fla., and Ryals, Anderson & Anderson, of Macon, for defendant in error.

BELL J.

Walton, while riding a motorcycle, was struck and injured by an automobile driven by Scarborough, at an intersection of streets in the city of Macon. The automobile was the property of Scarborough's wife, who was riding with him at the time. Walton brought suit for damages against both Mr. and Mrs. Scarborough, and recovered, and the defendants have excepted to the overruling of their motion for a new trial. Counsel for the plaintiffs in error, in their brief, do not insist upon the general grounds of the motion, nor upon any of the special grounds, except the second, third, and fourth.

1. In the second special ground the defendants excepted to the charge of the court upon the subject of comparative negligence, in which the jury were told that, if the alleged injury was the fault of both the plaintiff and the defendants, but that if the plaintiff could not have avoided the injury by the exercise of ordinary care and diligence, then, notwithstanding the plaintiff may have been to some extent at fault, he would be entitled to recover, but the amount of the verdict in his favor "should be diminished in proportion to the amount of fault attributable" to him. The complaint is that this charge merely authorized the jury to reduce the damages without requiring them to do so, and that the instruction which the court should have given was that under the conditions named the jury shall diminish the damages in proportion to the negligence of the plaintiff. The word "should," as used in the court's charge, implied duty or obligation, and, with its context, meant that it was the duty of the jury to reduce the damages in the proportion stated. and not merely that the jury were authorized or had a discretion to do so. It is not to be assumed that the jurors will violate a duty which the court has made known to them. There is no merit in this ground of the motion for a new trial. This ruling is not in conflict with the decision of this court in Lamb v. McAfee, 18 Ga.App. 584(3), 90 S.E. 103. We were dealing in that case with an entirely different question. See, in this connection, Augusta Corp. v. Collins, 18 Ga.App. 303(1), 89 S.E. 444; Atlanta Ry. Co. v. Gardner, 122 Ga. 82(5), 49 S.E. 818; 35 Cyc. 1451, on "Shall"; 36 Cyc. 434, on "Should"; and Webster's International Dictionary.

2. Special ground 3 of the motion for new trial complains that the court erred in charging that, if the jury should find that the defendant, Mr. Scarborough, did a certain act in driving the automobile at the time and place in question, and should further find that this act was negligent, "then the plaintiff would be entitled to recover from the defendant, under the rules of law as otherwise given you in charge." The exceptions to this charge are that it in effect instructed the jury that the plaintiff himself was not guilty of such negligence as would bar a recovery, and that, if the defendant Scarborough was negligent in the manner stated, his negligence, and not that of the plaintiff, was the proximate cause of the injury, when such question of proximate cause was, under the evidence, exclusively for determination by the jury; that the excerpt came after all other instructions had been given, and amounted to a charge that all of the preceding instructions were such as to entitle the plaintiff to recover, provided the jury should believe that the defendant Scarborough was negligent in the manner set forth in the excerpt complained of, and was especially harmful in that it was the last thing said by the court to the jury, following even the instructions as to the form of verdict, and was argumentative, in that it summed up particular facts and conditions which would entitle the plaintiff to recover, without in like manner summing up the particular facts and conditions under which a verdict would be required in favor of the defendants.

It is true that the excerpt complained of...