Wells v. Alderman, 43418

• Decision Date: 19 April 1968
• Docket Number: No. 43418,No. 1,43418,1
• Citation: 117 Ga.App. 724,162 S.E.2d 18
• Parties: Gene W. WELLS v. Lela Mae ALDERMAN
• Court: Georgia Court of Appeals

Page 18

162 S.E.2d 18

117 Ga.App. 724

Gene W. WELLS v. Lela Mae ALDERMAN.

No. 43418.

Court of Appeals of Georgia, Division No. 1.

April 19, 1968.

Rehearing Denied May 2, 1968.

Syllabus by the Court

1. The general grounds of the motion for new trial and the motion for judgment notwithstanding the verdict were properly overruled.

2. Where there was no evidence of a crosswalk existing at the place on the roadway where plaintiff's husband was crossing it when struck by defendant's automobile, a charge dealing with the duties owing by a motorist to a pedestrian who is crossing in an unmarked crosswalk was unauthorized.

3. While a charge of the statute relative to the requirement of an operator of a motor vehicle appropriately to reduce his speed when approaching and crossing an intersection would not have been error if properly given, the omission of the word 'appropriate' rendered it erroneous.

4. A ground of exception to a charge urged for the first time in this court will not be considered, unless the charge was harmful error as a matter of law.

5. A charge on the duty of a motorist to apply his brakes in time to avoid striking a pedestrian while walking in a crosswalk, not being adjusted to the facts, was error.

6. It was not error to charge on the duty of a motorist to give audible warning with the horn when reasonably necessary to insure safe operation of the vehicle; however, the instruction should admonish the jury to consider whether the motorist had reasonable opportunity to sound the horn after discovering the presence of a pedestrian in the road immediately ahead of him in determining whether failure to sound it might be negligence.

7. A charge relative to the respective rights of a pedestrian and a motorist on the highway which does not take into account whether the pedestrian was in a crosswalk, as provided by statute, or was at some other place on the highway, is error.

8, 9. Since evidence delivered at a coroner's inquest is not admissible in a subsequent civil proceeding relative to the same occurrence, it was not error to reject a portion of the certified transcript of the proceedings as the testimony of an eyewitness whose whereabouts was unknown and who was thus unavailable, or to reject the entire transcript.

10. Where plaintiff's counsel cross examined a witness at the trial relative to a statement which he had made in a deposition, defendant was entitled to require that all of the witness' statement or testimony on deposition which was relevant to the statement about which he was cross examined be introduced, so that the statement might be explained or reconciled by the relevant portions or by the witness himself.

11. Where a hypothetical question was propounded to a witness and the witness stated that his answer would be dependent upon variables not included in the facts of the question, or which had not been proven, an objection to the question and answer thereto on the ground that it was not based upon proven facts and that no proper foundation had been laid for the asking of the question should have been sustained and the evidence excluded.

Mrs. Lela Mae Alderman brought suit against Gene W. Wells to recover the full value of the life of her husband who she alleges was killed when the husband, a pedestrian, was struck by Wells' vehicle when he was crossing Norwich Street Extension in a painted crosswalk near the intersection of Norwich Street and the Old Jesup Road. The evidence disclosed that Mr. Alderman was employed as a mechanic in T. R. May & Sons Garage and that on the date of the occurrence he left his employment to go home around noontime because he had been drinking. After the evening meal and about 8:30 p.m. he left the house wearing a white shirt and pale blue pants to go for a pack of cigarettes. At 8:50 he was crossing Norwich Street, going from west to east toward the Dixie Package Store located some fifty to sixty feet from the intersection of Norwich Street and the Old Jesup Road. It was after dark; the area had no street lights, and there was no other lighting in the area save that which might come from the package store, from a small fruit stand on the other side of the street and from a filling station some 75 to 100 yards away.

Mr. Wells, employed in a Sears Roebuck store at Marietta, had been visiting his family at Brunswick and had started on his way back to Marietta, driving a Corvair convertible which was about three months old. He was driving northerly on Norwich Street Extension in the east lane of traffic. The speed limit at the place of the occurrence was 35 miles per hour. He testified, as did other witnesses, that his speed was within the lawful limits. Suddenly, at a distance of about ten feet ahead, in his lane of traffic, he saw the form of a man (Mr. Alderman) crossing the street in front of him. The street was 40 feet wide, divided for two lanes of traffic-the east lane for northbound and the west for southbound traffic. The street was paved with black or dark asphalt and had center line marking. Going north, the Old Jesup Road branches off to the right, making a Y type of intersection. There were no marked or painted crosswalks either at the Old Jesup Road intersection or at the place where Mr. Alderman was crossing.

Immediately upon seeing the man crossing ahead of him Mr. Wells applied his brakes but was unable to bring the vehicle to a stop before striking him; and the man was thrown up on the hood of the car, but rolled back and fell to the street within a distance of ten or fifteen feet after being struck. Wells pulled around him and off on the shoulder, stopping 30 or 35 feet from the body, got out of his car and ran back to render such assistance as he could. Seeing that the man was bleeding and seriously wounded, he began flagging cars, asked that an ambulance be called and the police notified. Mr. Alderman was dead on arrival at the hospital. The police came to the scene and made an investigation of the matter. Traffic was heavy, and cars were backed up for a considerable distance in each direction. Only two eyewitnesses testified. One, Mr. Roy B. Smith, had been standing at the service station, and he described what he heard and saw, saying: 'I heard a squealing noise of the tires, like, see, and I looked, just glimpsed, and just an instant there was a shadow between me and it, and I couldn't make out what it was, and I couldn't swear what it was at all. * * * The shadow was struck by a car. At that instant there weren't any cars going south. There may have been some just before and just afterward. I could not say what speed the car was going, and I couldn't tell whether the shadow was moving-it was so quick. It happened right even with the whiskey store. The man swerved off the road and stopped-it couldn't have been more than thirty feet from where it hit the body. He got out of his car, ran toward me saying that he had hit a man and thought he had killed him, and asked me to call an ambulance and the police. I saw no other people in his car. I did not hear any horn blow. The shadow I saw was right in the center of the lane this young man was driving in. I went to the man who had been hit and squatted down to see him. I did not smell any alcoholic odor about him.'

The other witness, Mr. Ray Arthur, testified that he, his sister and his two-year-old daughter had been out riding and were returning to Brunswick, going southerly on Norwich Street Extension. 'I had just pulled out from the forks. My little girl fell down when I came to a stop at the stop sign. I reached back, got her situated on the back seat and was proceeding on toward Brunswick, and all of a sudden I hear a squeaching sound like tires-like brakes being applied. I guess about ten or twelve yards from the oncoming car I looked over and saw this man standing directly in its path. He was kinder in a crouched position. By that time my car had passed his and I pulled over, stopped and went back to where the man was lying in the road. * * * The first glimpse I got of Mr. Alderman was when he was ten or twelve yards from the oncoming car of Gene Wells. It was dark. He had his headlights on. I saw the car but I could not determine its speed. However, I don't think it was traveling at any excessive speed-I would say about thirty miles an hour, something like that. I couldn't say whether Mr. Alderman was moving or not. I just saw him in front of the oncoming car. I don't know whether he had crossed in front of me or not. It occurred in front of the whiskey store building, about the middle.'

The jury returned a verdict for plaintiff; and from a judgment denying a new trial and a motion for judgment n.o.v., defendant appeals.

Conyers, Fendig, Dick & Harris, Albert Fendig, Jr., Brunswick, for appellant.

Alaimo & Taylor, Anthony A. Alaimo, James A. Bishop, Brunswick, for appellee.

EBERHARDT, Judge.

1. While the evidence of negligence may be weak, we are unable to say that there was not some evidence from which the jury might conclude that the defendant was not keeping a proper lookout ahead and that this may have been the cause of the incident. Consequently, we find no error in the overruling of the general grounds of the motion for new trial or the overruling of the motion for judgment n.o.v. Haygood v. Bell, 42 Ga.App. 602(4), 157 S.E. 239.

2. The first enumeration of error is as to a charge of Code Ann. § 68-1656(a) dealing with the duties owing by a motorist to a pedestrian crossing in an unmarked crosswalk. Defendant excepted, urging that there was an utter failure of evidence to show the existence of any kind of crosswalk at the place where Mr. Alderman was crossing Norwich Street Extension, and that for this reason the charge was inappropriate and unauthorized.

On cross examination the defendant testified that the incident occurred 'right past the intersection,' that he recalled no marked crosswalk, but that people did normally cross the street in...