Southern Bell Tel. & Tel. Co. v. Bailey

• Decision Date: 17 February 1950
• Docket Number: No. 2,No. 32880,32880,2
• Citation: 57 S.E.2d 837,81 Ga.App. 20
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. BAILEY
• Court: Georgia Court of Appeals

Page 837

57 S.E.2d 837

81 Ga.App. 20

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. BAILEY.

No. 32880.

Court of Appeals of Georgia, Division No. 2.

Feb. 17, 1950.

Syllabus by the Court

1. The use of the word 'authorized' where the word 'required' should have been used in the particular excerpt of the charge of which complaint is here made appears to be a verbal inaccuracy, and is immaterial here where the whole charge lays down the principle of law involved correctly and it does not appear that the inaccuracy complained of was misleading. Thomas v. State, 27 Ga.App. 38(4), 107 S.E. 418.

2. Whether or not the deceased was guilty of such negligence as amounted to the lack of the exercise of ordinary care for his own safety was a question for the jury in this case, and, the verdict being supported by some evidence and having the approval of the trial court, it will not be disturbed.

Mrs. Ruby Chalkley Bailey, herein referred to as the plaintiff, brought suit against the Southern Bell Telephone and Telegraph Company to recover damages resulting from the death of her husband, William Bailey, who was killed by an automobile owned by the defendant company and operated by its agent. The evidence showed without dispute that the deceased, who was employed at his mother's store on the west side of the highway in question, had left the store in order to return to his home, which was on the opposite side of the highway and about 300 feet south of the store. In crossing the highway he was struck by the defendant's automobile and died almost immediately. The automobile was also traveling in a southerly direction, overtaking him. There is some conflict in the evidence, but the jury was authorized to find, construing it in its light most favorable to support the verdict, that the deceased proceeded south for a short distance along a path just off the right side of the road; that a truck containing friends passed him and he waved to them; that immediately thereafter he stepped into the highway and started across it in a diagonal fashion; that he safely crossed the southbound traffic lane and reached a point on the northbound lane about one foot over the center line, when the defendant's automobile which was traveling 150 feet or more behind the truck, also in a southerly direction, struck him from the rear; that the car was travelling at approximately 65 miles per hour and was entirely on the left side of the road, and that the right front fender thereof afforded th point of impact. The automobile skidded a distance of 86 feet, as shown by tire marks, and the deceased was knocked 54 or 58 feet by the blow. One witness also testified that as the car passed the store it was 'pulling to the left side of the road'. The driver, however, contended that he was travelling on the right side of the road and pulled sharply to the left to avoid hitting the deceased, but that the deceased continued walking directly into the path of the car. As the deceased's father walked out from the store to the scene of the collision the driver of the automobile walked up and said, 'My God, it's all my fault. I had rather it had been me.'

The jury returned a verdict for the plaintiff. To the judgment of the court based thereon the defendant filed its motion for a new trial on the general grounds, later amended by adding one special ground, and this judgment is assigned as error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, E. D. Smith, Jr., Atlanta, G. A. Huddleston, Greenville, for plainiff in error.

N. E. Culpepper, Greenville, W. S. Allen, Greenville, Ben R. Freeman, Greenville, for defendant in error.

TOWNSEND, Judge.

1. Special ground 1 of the amended motion for a new trial complains of error in the charge as follows; 'Gentlemen, if you find the defendant used such degree of caution and care at the time of the transaction in question that an ordinarily prudent person would have used under the same or similar circumstances, you would be authorized to find a verdict for the defendant.' As pointed out, the word 'authorized' should have been 'required.' However, immediately before this sentence the court charged that if the defendant 'used such care as an ordinarily cautious and prudent person would use under like circumstances * * * and used reasonable and ordinary care under all the circumstances, there can be no recovery. He is required to use just such care as an ordinarily cautious and prudent person would use under like circumstances.' This portion of the charge corrected and modified the erroneous charge complained of, and the charge as a whole could not have confused or misled the jury. This question has already been considered and decided by our appellate courts. See Atlanta, K. & N. Ry. Co. v. Gardner, 122 Ga. 82(5), 49 S.E. 818; Georgia Ry. Co. v. Pittman, 73 Ga. 325; Krogg v. Atlanta &amp West Point Ry. Co., 77 Ga. 202, 4 Am.St.Rep. 77; Spalding Lumber Co. v. Hemphill, 77 Ga.App. 1, 47 S.E.2d 514; Wilcox v. State, 79 Ga.App. 151, 53 S.E.2d 127. Where it appears that the word complained of represents merely a verbal inaccuracy, and the charge as a whole lays down the principle of law involved correctly, the case will not be reversed on this ground. Thomas v. State, 27 Ga.App. 38(4), 107 S.E. 418.

2. The defendant admits through its counsel that there is in the record sufficient evidence to authorize a finding by the jury that its agent was negligent in the operation of the automobile, but contends that such negligence does not entitle the plaintiff to recover because the deceased met his death as a result of his failure to exercise ordinary care for his safety. The following cases applying this principle of law are cited: Southern Ry. Co. v. Hogan, 131 Ga. 157(1), 62 S.E. 64; Smith v. American Oil Co., 77 Ga.App. 463, 49 S.E.2d 90; Sumner v. Thomas, 72 Ga.App. 351, 33 S.E.2d 825; Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72, 190 S.E. 354; Americus, Preston & Lumpkin Ry. Co. v. Luckie, 87 Ga. 6, 13 S.E. 105; Mansfield v. Richardson, 118 Ga. 250, 45 S.E. 269; Georgia Power Co. v. Maxwell, 52 Ga.App. 430, 183 S.E. 654; Lane Drug Stores, Inc. v. Story, 72 Ga.App. 886, 35 S.E.2d 472; Banks v. Housing Authority of City of Atlanta, 79 Ga.App. 313, 53 S.E.2d 595; O'Dowd v. Newnham, 13 Ga.App. 220, 80 S.E. 36. These cases all emphasize that only in cases where there can be but one opinion does the court have authority to decide questions...