Spalding Lumber Co v. Hemphill

• Decision Date: 10 April 1948
• Docket Number: No. 31908.,31908.
• Citation: 47 S.E.2d 514
• Parties: SPALDING LUMBER CO. v. HEMPHILL.
• Court: Georgia Court of Appeals

47 S.E.2d 514

SPALDING LUMBER CO.

v.HEMPHILL.

No. 31908.

Court of Appeals of Georgia, Division No. 1.

April 10, 1948.

Rehearing Denied April 29, 1948.

Syllabus by the Court.

1. The excerpt from the charge complained of in ground 4 of the motion, considered with the charge as a whole, was not error requiring a new trial, for the reasons stated in this division of the opinion.

2. The charge on accident, if improper, tended to help rather than harm the defendant, by giving it the benefit of an additional defense, and was not error requiring a new trial.

3. The evidence authorized the verdict.

Error from Superior Court, Spalding County; Chester A. Byars, Judge.

Action Dy Mrs. E. W. Hemphill against Spalding Lumber Company for damages growing out of automobile collision. To review an adverse judgment, defendant brings error.

Judgment affirmed.

Andrews & Nall, Stanley P. Meyerson and John J. Simpson, all of Atlanta, for plaintiff in error.

Christopher & Futral, of Griffin, for defendant in error.

PARKER, Judge.

Mrs. E. W. Hemphill sued Spalding Lumber Company for damages for injuries to her person and property growing out of a collision between an automobile owned and driven by her and a truck of the defendant driven by its employee and servant. The petition alleged in substance, and the evidence tended to show, that the plaintiff was driving her automobile south on a street in the City of Griffin; that she turned to the left and into a private driveway leading from the street for the purpose of turning around and proceeding north on the same street; that when the plaintiff pulled her automobile into the driveway she stopped and put the gears in reverse and backed out into the street; that she was in the process of starting to drive north up the street when she observed more than a block away the truck of the defendant coming south; that the plaintiff, observing the manner and speed at which the truck was approaching, started to pull her car back into the driveway; that as she did so the driver of the truck crossed over and onto his left side of the street, on which the plaintiff's automobile was, and hit the rear of it; that the plaintiff was thrown out of her automobile and was run over by the defendant's truck; and that she received as a result thereof certain physical and bodily injuries. It was alleged that the defendant was negligent in operating its truck at "the dangerous and reckless rate of speed of more than fifty miles per hour within the city limits of the City of Griffin", and "in operating said truck over and upon the left side of said street and [in] runningsaid truck into the automobile in which petitioner was riding." The defendant answered denyng the material allegations of the plaintiff's petition, and alleged that the plaintiff was negligent in the operation of her automobile in certain particulars, and that its truck driver turned to the left in an effort to go in front of plaintiff's automobile because of the sudden emergency created by the plaintiff in backing out into the street in front of the truck. The jury returned a verdict for the plaintiff. Defendant made a motion for new trial on the general grounds and amended it by the addition of two special grounds. The court overruled the motion and the defendant excepted.

1. Ground 4 of the motion complains of the following charge: "The plaintiff alleges further, gentlemen of the jury, that the driving of the defendant's truck on the left-hand side of the street at the time and place in question was also an act of negligence, and in that connection I charge you that the State law requires every person driving a motor vehicle upon the roads or highways of this State to drive as far to the right as humanly possible in order that traffic may pass without interference." The defendant contends that this charge was not sound as an abstract principle of law, that it placed a greater burden on the defendant than the law imposed upon him, in that he was merely required to exercise ordinary care, and, in meeting another to turn to the right of the center line of the highway, so as to pass without interference. The plaintiff contends that the charge, if error, was harmless in that it did not deal with a material issue in the case, and applied with equal force to both parties, and was qualified and explained in other parts of the charge and cured by the charge as a whole. We think that the charge was an inaccurate and incorrect statement of the law requiring an operator of a vehicle, in meeting another vehicle coming from the opposite direction on the same highway, to turn to the right of the center of the highway, so as to pass without interference, Code, § 68-303, subd. c. This does not mean, however, that the charge was nec essarily harmful. Whether or not the charge was harmful presents a more difficult question. To charge the law incorrectly on a material issue, which is harmful or calculated to harm the complaining party, is error requiring a new trial; but an incorrect charge, or a charge on an immaterial point which is not harmful, does not require a new trial.

The plaintiff alleged that the defendant was negligent in operating its truck "over and upon the left side of said street and running said truck into the automobile in which petitioner was riding". That alle-gaton was denied by the defendant who alleged that an emergency was created when the plaintiff backed her car into the street and into the path of the oncoming truck, which emergency called for a prompt decision and immediate action by the driver of the truck, and "that in the exercise of his best judgment said driver turned to the left in an effort to go in front of plaintiffs automobile". The evidence of both parties showed that the plaintiff did back her car from a driveway into the street, and that she tried to drive back into the driveway as the truck...