Stanley v. Squadrito
| Decision Date | 10 April 1963 |
| Docket Number | No. 3,Nos. 40030,40031,s. 40030,3 |
| Citation | 107 Ga.App. 651,131 S.E.2d 227 |
| Parties | H. H. STANLEY, Administrator, v. Charles SQUADRITO, by Next Friend, et al. J. T. HUBBARD v. Charles SQUADRITO, by Next Friend, et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a negligence action by a guest passenger, growing out of a highway collision between the automobile of the plaintiff's host driver and a truck approaching from the opposite direction, the evidence authorized a verdict against the host driver and the driver of an ambulance that was also approaching from the opposite direction.
2. Under the facts and circumstances of this case, it was a jury question whether it was negligent for the ambulance driver, not on an emergency call, to use his red emergency signal light.
3. In an allegation of negligence per se in driving at 55 miles per hour in violation of Code Ann. § 68-1626, which prohibits driving 'at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing,' and prohibits driving at over 60 miles per hour at any time, the gist of the alleged violation is driving at an unreasonable and dangerous speed. Hence it is not essential to prove the exact speed alleged, and whether there was a violation of the statute constituting negligence is a question for the jury.
4. An assignment of error on the ground that the evidence did not authorize a portion of the charge to the jury in which the court quoted several allegations of the plaintiff's petition, and stated the law applicable thereto, is without merit when the evidence authorized a charge on any of the allegations.
5. It is not error for the court to read to the jury allegations of the plaintiff's petition, even though the allegations may not be supported by evidence.
6. The inadvertent use of a wrong word in an instruction of the court to the jury was not reversible error.
7. The instruction in which the court mentioned impeachment of a witness for general bad character, though no evidence of any witness' character had been introduced, was not reversible error.
8, 9. If it is improbable from the charge as a whole that the jury would have been misled by the omission of applicable instructions in conjunction with a certain part of the charge, when these instructions are covered elsewhere in the charge, the omission is not error.
The minor plaintiff sued three defendants for damages resulting from serious injuries he received when the automobile in which he was riding collided with a trailer truck coming from the opposite direction. The jury awarded him a verdict of $45,000 against two defendants, on the driver of the automobile in which the plaintiff was riding, and the other the driver of an ambulance, who was also coming from the opposite direction and allegedly operating the ambulance negligently. The verdict was in favor of the operator of the tractor trailer. The two losing defendants filed motions for new trial and motions for judgment notwithstanding the verdict. As plaintiffs in error in this court they assign error on the trial court's overruling of these motions, and the defendant Hubbard, owner and driver of the ambulance, also assigns error on the overruling of his demurrers to an amendment to the plaintiff's petition filed during the trial.
Powell, Goldstein, Frazer & Murphey, Edward E. Dorsey, Eugene G. Partain, Atlanta, for Stanley in No. 40030.
Sam F. Lowe, Jr., Atlanta, G. Robert Oliver, Jonesboro, for Hubbard in No. 40031.
Charles H. Hyatt, Decatur, Sam F. Lowe, Jr., A. Paul Cadenhead, Atlanta, Thomas O. Davis, Decatur, Lee Hutcheson, Jonesboro, for defendant in error.
1. The place and conditions surrounding the collision were described by witnesses. It was a two-lane highway; the surface was wet and slippery and uneven, or bumpy. Southwardly the highway descends and then for about a half mile ascends steeply to the crest of a hill; over the crest the highway makes an 'S' curve, and slopes gradually upward. It is a dangerous curve. A driver traveling northwardly cannot see the traffic coming uphill until he gets within 200 feet of the crest of the hill. The trailer truck was going uphill southwardly at about 8 to 10 miles per hour. Its driver observed the automobile of Stanley, plaintiff's host driver, approximately 1500 feet away coming around the curve from the opposite direction, traveling about 45 miles an hour; it was skidding and seemed to be out of control. Twice it went off the road to the right and back onto the road, and just after coming over the crest of the hill it crossed the highway and hit the truck.
Hubbard was also driving his ambulance southwardly up the hill. He was not on an emergency call. He testified at the trial that he was behind the trailer truck and had passed no traffic going up the hill. In evidence were written statements made by him the day after the collision, in which he said: Before the accident he passed his other ambulance, accompanied by police, going the other way. Then he turned on his blinking red light and, driving at about 55 miles per hour, passed some cars going down hill; and going up the hill where the accident occurred he passed some more cars, and about half way up the hill passed a slow moving truck. As he started to pull back in front of this truck and behind the trailer truck involved in the collision, which was about 100 feet ahead of him, he saw the Stanley car coming over the hill; he had plenty of room to pass the trailer truck.
The plaintiff testified that he was awakened by the screeching of tires, sat up on the back seat and saw a red light straight in front of him, at about the middle of the windshield and 2 or 3 car lengths ahead of the car. He asked what was going on and then the collision occurred. He saw the trailer and the red light right beside it for only a second.
Though the evidence was not without conflict, that which we have mentioned above was sufficient to support the verdict, and the trial court did not err in overruling the general grounds of the motions for new trial and the motions for judgment notwithstanding the verdict of Stanley and Hubbard.
2. The plaintiff's amendment to which the defendant Hubbard demurred alleged that, as the ambulance, traveling southwardly, came up the hill and at the time of the collision, the red signal lamp on its roof was burning red for the purpose of signaling other vehicles to clear its path; that Hubbard knew or should have known that the operators of other vehicles upon seeing the red light burning would endeavor to clear the roadway; and that no emergency existed authorizing the burning of the lamp for this purpose. A statute, Code Ann. § 68-1604, excuses an ambulance in an emergency from observing certain traffic regulations, when this is consistent with due regard for the safety of others, and when the vehicle sounds a siren or other audible signal and displays a red light to other traffic. The law requires drivers of other vehicles to yield the roadway and stop for an approaching emergency vehicle to pass, when it is exhibiting a red light and sounding a siren or other audible signal. Code Ann. § 68-1654.
Whether the burning of the ambulance's red signal lamp as alleged in the amendment can be negligence is the question raised by Hubbard's demurrer. The answer depends upon whether Hubbard in the exercise of ordinary care could have foreseen in the circumstances that the burning of the lamp might create a danger to others. Restatement, Torts 762, § 289. What is reasonably to be foreseen is generally a question for the jury. Thomas v. Williams, 105 Ga.App. 321, 327, 124 S.E.2d 409. An ambulance driver might reasonably foresee that the driver of another vehicle might respond to the red light signal by preparing to stop and clear the road even though no audible signal was being given. Given the facts of this case, including the conditions of the weather, of the character and surface of the highway, and of the other highway traffic, we cannot say that it was not reasonably foreseeable that the unnecessary burning of the red light signal might endanger others and that it could not be negligent. Construing the amendment in connection with the other allegations of the petition, the trial court did not err in overruling Hubbard's demurrer to the amendment. For the same reasons the trial court did not err in overruling special ground 1 of Hubbard's motion for new trial complainint of the trial court's instruction to the jury on the specification of negligence alleged in the amendment.
3. Ground 3 of Hubbard's motion for new trial contends that the court erred in submitting to the jury the plaintiff's allegation of a violation of Code Ann. § 68-1626, and the law applicable thereto, because the evidence was not sufficient to support a finding of the alleged violation. Code Ann. § 68-1626 prohibits driving 'at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing,' and prohibits driving at over 60 miles per hour at any time. The violation alleged by the plaintiff was driving at 55 miles per hour under conditions and circumstances making such speed dangerous and unreasonable. Hubbard contends that there was no evidence that the ambulance was driven at 55 miles per hour when he was within Stanley's range of vision or at any time or place where this rate of speed could have had anything to do with the collision. We will assume, though we do not decide, that the defendant's though we do less than 55 miles per hour when the forces that brought about the collision became active. The gist of the violation of the statute is not driving at 55 miles per hour; it is driving at a speed greater than is reasonable and prudent under all the circumstances. In other words, the speed of 55 miles is not material; the material issue is...
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...court did in this case. We must presume that the jury pays attention to and correctly applies all of the charge. Stanley v. Squadrito, 107 Ga.App. 651, 658, 131 S.E.2d 227. The law has created-both duties of the employer to the plaintiff-respondeat superior (to answer for the acts of his em......
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