Sheetz v. Welch
| Decision Date | 10 March 1954 |
| Docket Number | No. 35030,No. 2,35030,2 |
| Citation | 81 S.E.2d 319,89 Ga.App. 749 |
| Parties | SHEETZ v. WELCH |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The plaintiff does not argue the general grounds, and therefore they are considered abandoned.
2. The special grounds are without merit for the reasons expressed in the body of the opinion.
Ashton Hunter Sheetz, Jr., by next friend, his father, (both of whom we shall call the plaintiff) brought suit for damages against William E. Welch (whom we shall call the defendant). Generally, the petition alleged that the plaintiff was traveling south on Northside Drive (in the city of Atlanta) in his proper lane, and the defendant was traveling north on Northside Drive in his proper lane. At the intersection of Northside Drive and Bishop Street, the motor scooter of the plaintiff and the car of the defendant collided in about the center of the intersection, inflicting injuries to the person of the boy on the motor scooter. It is alleged that the boy was 16 years of age, and that the negligence of the defendant was the proximate cause of the injuries to the boy, in that the defendant had turned his car in an effort to turn to his left into Bishop Street in violation of an alleged ordinance of the City of Atlanta. In answer to the petition, the defendant alleged that in his traveling north, when he arrived at the said intersection, the plaintiff and the defendant had a green signal light; that the defendant stopped his car at the intersection and gave the legal signal of his intentions to turn his car to the left into Bishop Street; that he had to wait there until two cars near the intersection, going south on Northside Drive in the same direction as the plaintiff was traveling, had cleared the intersection; that then it was that the defendant in compliance with the law turned his car to the left and as he did so, he observed the boy coming down Northside Drive in the opposite direction at an illegal speed, and that the motor scooter on which the boy was riding struck the right hand front portion of the defendant's car catapulting across Northside Drive to the left; that the injuries which the boy received were the result of his own negligence, which proximately caused such injuries. The plaintiff in his petition pleaded the first portion of an ordinance of the City of Atlanta, and the defendant pleaded the latter portion of the same ordinance. The ordinance was introduced in evidence. The jury returned a verdict for the defendant. The evidence was conflicting.
The plaintiff filed a motion for new trial on the statutory grounds, and thereafter added six special grounds. The court denied the motion. On this judgment the plaintiff assigns error.
Reuben A. Garland, Anthony A. Alaimo, Atlanta, for plaintiff in error.
J. G. Roberts, Marietta, Marshall, Greene, Baird & Neely, Atlanta, for defendant in error.
1. The plaintiff does not argue the general grounds and they are considered abandoned. We will take up the special grounds in their order.
2. Special ground 1 assigns error on the refusal of the court to give a written request to charge, as follows:
The requested charge was only a portion of the ordinance of the City of Atlanta, Traffic Code, section 88-919. Immediately following the portion of the ordinance which the plaintiff requested the court to charge, the ordinance further provides: '* * * but said driver, having so yielded and having given a signal when and as required by this ordinance, may make such left turn; and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.'
There is no necessity to go into the elementary question involved. A request to charge which is perfect must be given as requested or substantially so. In Smith v. Payne, 85 Ga.App. 693(2), 70 S.E.2d 163, 167, this court said: 'A request to charge must be apt and even perfect, and it is not error to fail to give a request which does not correctly state the principle of law involved. * * *' The evidence was conflicting as to which vehicle was in the intersection first, and to charge as requested as to one portion of the ordinance without the other would have been misleading. On this point of the facts, the jury disagreed with the plaintiff's contention. We do not think it a reasonable contention that the court should have charged only that portion of the ordinance favorable to the plaintiff and not have given the portion providing as to when the defendant could turn to the left. The jury believed that the defendant complied with the ordinance, and that the plaintiff did not. We see no necessity of citing other authorities. There is no merit in this special ground.
3. Special ground 2 complains because the court charged: (Italics ours.)
The plaintiff assigns error on the italicized portion of this charge. It is the contention that, since the ordinance of the City of Atlanta had been introduced and since there was no pleading or evidence that a State traffic law was involved, the court should not have included the italicized portion to the jury. It is contended that the vice in this portion of the charge is that it submitted to the jury a question of law. Counsel for the plaintiff called our attention in this regard to Atlantic Coast Line R. Co. v. Adams, 7 Ga.App. 146(4), 66 S.E. 494 and Thornton v. Parker, 208 Ga. 633, 68 S.E.2d 695. In reading those cases in the light of the evidence in the case before us and the whole charge, in our opinion this italicized part of the charge does not require a reversal. It is our opinion that the italicized part was mere surplusage, under this record and did not mislead the jury. As analogous to the situation here, we call attention to Thomson v. Avery, 67 Ga.App. 671(1), 21 S.E.2d 331, 332, as follows: 'It is not cause for a new trial that the court charged the jury a Code section, part of which was applicable to the case under consideration and part inapplicable, where it does not appear that the charge of the inapplicable part was calculated to mislead the jury, or to erroneously affect their verdict, or was prejudicial to the rights of the movant.'
It will be noted in the instant case that the charge did not submit to the jury any State law regarding or applicable to the facts in the instant case. It is inconceivable to this court that, since there was no State traffic law charged, a jury in this day and time of enlightenment of jurors could have possibly been misled. We find no merit in this contention.
4. Special ground 3 complains of the following excerpt from the charge of the court: 'If the driver of any...
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