Wells v. Steinek

• Decision Date: 17 September 1934
• Docket Number: No. 23554.,23554.
• Citation: 49 Ga.App. 482,176 S.E. 42
• Parties: WELLS. v. STEINEK et al.
• Court: Georgia Court of Appeals

49 Ga.App. 482

176 S.E. 42

WELLS.

v.STEINEK et al.

No. 23554.

Court of Appeals of Georgia,

Division No. 1.

Sept. 17, 1934.

Syllabus by Editorial Staff.

Error from Municipal Court of Augusta; J. E. Bryson, Judge.

Suit by K. L. Steinek and others against J. L. Wells. Judgment for plaintiffs, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Hammond & Kennedy, of Augusta, for plaintiff in error.

Henry G. Howard, Henry J. Heffernan and James S. Bussey, all of Augusta, for defendants in error.Syllabus Opinion by the Court.

GUERRY, Judge.

1. Where the pleadings and the evidence raise the issue of whether or not the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, it is the duty of the trial judge to give this principle in charge to the jury, without a request therefor. Seaboard Air Line Ry. v. Rostock; Atlanta K. & N. R. Co. v. Gardner, 122 Ga. 82, 19 S. E. 818; Deen v. Wheeler, 7 Ga. App. 507, 67 S. E. 212; Jackson v. Ga. R. & Ranking Co., 7 Ga. App. 644, 67 S. E. 898; Georgia Ry. & Power Co. v. Freeney, 22 Ga. App. 457, 96 S. E. 575; Central of Ga. R. Co. v. Reid. 23 Ga. App. 694, 99 S. E. 235; Davis v. Whit-comb, 30 Ga. App. 497, 118 S. E. 488; Olliff v. Howard, 33 Ga. App. 778, 127 S. E. 821; Davies v. West Lumber Co., 32 Ga. App. 460, 123 S. E. 757; Atlantic Coast Line R. Co. v. Canty, 12 Ga. App. 411, 77 S. E. 659; Russell v. Rayne, 45 Ga. App. 55, 163 S. E. 290; Savannah Electric Co. v. Lackens, 12 Ga. App. 765, 79 S. E. 53; Southern R. Co. v. Gore, 128 Ga. 627, 58 S. E. 180; Louisville & Nashville R. Co. v. Ledford, 142 Ga. 770, 83 S. E. 792; Atlantic Coast Line R. Co. v. Anderson, 35 Ga. App. 292, 133 S. E. 63. A general denial by the defendant of a paragraph of the plaintiff's petition alleging that he was in the exercise of ordinary care is sufficient to raise that issue. Ga. Ry. & Power Co. v. Freeney, supra; Olliff v. Howard, supra; Davies v. West Lumber Co., supra. Such issue may be raised by the plaintiff's own evidence. Southern Cotton Oil Co. v. Caleb, 143 Ga. 585, 85 S. E. 707. However, it was not error for the trial judge to omit to charge the jury upon this subject in the case at bar, for, although the pleadings raised such issue, nowhere is such issue raised by the evidence. The plaintiff's evidence, if credible to the jury, showed that the defend ant was driving on the wrong side of the road, and the evidence nowhere showed that, if the plaintiff had done anything other than he did upon seeing the defendant, he could have avoided the collision. The defendant denied all negligence and set up as a defense that the cause of the collision was that the plaintiff was on the wrong side of the road. Therefore, under the evidence, there was shown no contributory negligence on plaintiff's part and the plaintiff's evidence did not suggest that issue.

2. The court did not err in giving in charge to the jury the law of South Carolina with reference to speed of automobiles. Code S. C. 1932, § 1616. Although no witness undertook to testify or to approximate the exact or approximate rate of speed of the defendant at the time of the collision, there was evidence from which the jury could conclude that the defendant was running at a rapid rate of speed in excess of the speed allowed by the law of South Carolina where the collision took place.

3. The court did not commit such error in its instruction to the jury on the subject of damages as would work a reversal of the judgment. The rule laid down by the court was not a proper measure for determining damages for injury to property. For the correct rule, see Olliff v. Howard, 33 Ga. App. 778. 127 S. E. 821; Mitchell v. Mullen, 45 Ga. App. 282, 164 S. E. 276. However, it could not have been harmful to the defendant, as the jury found only the amount of damages which the plaintiff sued for; this being the only amount, under the evidence that they would have teen authorized to find. It certainly was not harmful in that it did not instruct the jury to reduce their findings by the amount the value of the car was enhanced by the replacement of the old parts with the new, as there was no evidence in the record contradicting the plaintiff's evidence that he was actually damaged in the amount of the verdict.

4. We...