Watson v. Riggs

• Decision Date: 15 July 1949
• Docket Number: No. 32539.,32539.
• Citation: 79 Ga.App. 784,54 S.E.2d 323
• Parties: WATSON et al. v. RIGGS.
• Court: Georgia Court of Appeals

79 Ga.App. 784

54 S.E.2d 323

WATSON et al.

v.RIGGS.

No. 32539.

Court of Appeals of Georgia, Division No. 1.

July 15, 1949.

Rehearing Denied July 28, 1949.

Syllabus by the Court

The court erred in overruling the motion for a new trial for errors shown in divisions four, five, eight and nine of the opinion,

Error from Superior Court, Houston County; Mallory C. Atkinson, Judge.

Death action by Mrs. Mary Jones Riggs against Herman Watson and another. To review a judgment for the plaintiff, defendants bring error.

Judgment reversed.

Harris, Harris, Russell & Weaver, Macon, S. A. Nunn, Perry, for plaintiffs in error.

S. Gus Jones, Macon, W. D. Aultman, Perry, Geo. B. Culpepper, Jr., Fort Valley, for defendant in error.

FELTON, Judge.

This is the second appeal of this case. For statement of case see Riggs v. Watson, 77 Ga.App. 62, 47 S.E.2d 900.

1, 2. As the case is being reversed on other grounds the questions of the excessiveness of the verdict and improper communications of third parties with certain jurors will not be considered.

3. Ground three of the amended motion for a new trial has been abandoned 4. Ground four of the amended motion complains of the following charge to the jury:

"There are two types of negligence on which the plaintiff may be entitled to recover. One is called negligence per se, which is a violation of some particular statute or ordinance which proximately causes the collision and the other type includes that field which is commonly known as simple negligence, which means that while the act complained of is not a violation of some specific law or ordinance, such as driving without efficient and serviceable brakes, or driving without having the vehicle equipped with a horn, bell or signalling device, or violating a speed law or having the vehicle under immediate control under certain conditions, it still is such an act as will give rise to a cause of action.

"In this connection, Mrs. Riggs has alleged that the driver failed to give any warning of his approach and failed to turn his truck in order to avoid striking the child and that he failed to keep a proper lookout and that he failed to bring the truck to a stop in order to avoid striking the child; she also alleges against Watson and Williams, among other things they negligently failed to properly inspect the truck in order to determine the condition of the brakes and horn. All of these are allegations of simple negligence. If proven to your satisfaction they may constitute just as much a breach of duty and form just as well a foundation for recovery as would a violation of some particular law. All of this is of course subject to the condition that such alleged breach is the proximate cause of the loss and is subject to the other rules of law I am giving you in charge."

We see no error in the first paragraph of the charge complained of. We think that the second paragraph was erroneous. The petition in this case alleged that the things stated by the court to have been alleged were negligently done. The court did not include this term in stating what was alleged. In stating that what the court said was alleged were allegations of simple negligence amounted to an expression of opinion that the acts stated to have been alleged amounted to simple negligence. The charge also expressed the opinion that if the acts stated by the court to have been alleged were proved to the satisfaction of the jury they could be found to be simple negligence and basis for a cause of action whether they were negligently done or not. A trial judge may not tell a jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligent. Savannah, Florida & Western Ry. Co. v.Evans, 115 Ga. 315, 41 S.E. 631, 90 Am.St.Rep 116; Atlanta & West Point Railroad Co. v.Hudson, 123 Ga. 108, 51 S.E. 29.

5.The exception in ground five is covered by the ruling in division four.

6. Ground six complains of the following charge: "The law also provides, upon aproaching, or passing any person walking in the roadway, or traveling any public street, or highway, or upon any bridge, or crossing at an intersection of public streets or highways, the operator of a motor vehicle or motorcycle shall at all times have the same under immediate control." The exception to this charge is the same as the exception to a similar charge in Christian v. Smith, 78 Ga.App. 603, 51 S.E.2d 857, where this court ruled against the contention of the plaintiff in error. The request to review and overrule that case as to this question is denied.

7. Ground seven complains of the following charge:

"I will give you in charge another...