Whatley v. Henry

• Decision Date: 16 July 1941
• Docket Number: 28837.
• Parties: WHATLEY v. HENRY.
• Court: Georgia Court of Appeals

16 S.E.2d 214

65 Ga.App. 668

WHATLEY v. HENRY.

No. 28837.

Court of Appeals of Georgia, Division No. 1.

July 16, 1941

Rehearing Denied July 31, 1941.

Syllabus by the Court. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Mrs. W. E. Henry brought an action in tort to recover damages for certain property and personal injuries, against Thurmond Whatley, and alleged that the defendant had damaged her in the sum of $25,000, in a collision of their automobiles at night, on the Barnesville-Perry highway, Route 7, in Crawford County, by his negligence in that the defendant [impleaded, but set up by evidence unobjected to] failed as he came over a hill and down an incline and approached her, to sound any warning with his horn and [according to the pleadings and the evidence] failed to dim his lights, but left them on blindingly bright and blinded her approaching from the opposite direction and driving on her right of the highway, and caused her to swerve her car over into that of the defendant, resulting in a collision, while she was without fault and in the exercise of due care. The defendant denied the allegations of the petition and pleaded that the injuries were caused by her own negligence (but without detailing the acts of negligence). The defendant also pleaded that the personal injuries of the plaintiff, if any there were, sprang not from the collision, but rather from a current, syphilitic malady theretofore dormant, and that the collision had no causal connection with the injuries allegedly sustained. The trial resulted in a judgment for the plaintiff in the sum of $3,000, and the defendant moved for a new trial. The court overruled the motion and the defendant excepted and assigned error on the usual general grounds and upon eleven special grounds. The assignments are set forth only to the extent as required for discussion and determination. The special grounds, on which the general grounds are interrelated and dependent, are discussed first.

C. W. Foy, of Butler, and Martin, Martin & Snow, of Macon, for plaintiff in error.

Homer Beeland, of Reynolds, and T. A. Jacobs, Jr., of Macon, for defendant in error.

GARDNER Judge.

1. The court charged the jury as follows: "If you believe that the defendant failed to give any warning by horn or use his signalling device and failed to reduce speed as he came over any incline and started down a descent in the road, and if you find that these acts contributed to the injury, as a proximate cause, and plaintiff while using due care, the plaintiff would be entitled to recover." This, taken with the remaining charge, was proper; the assignment is without merit that "the failure to have sounded the horn could have in no wise contributed to the accident because the plaintiff testified that she was driving the automobile and saw the lights of defendant's automobile from the moment it came over the hill and therefore the failure to sound the horn could have had no causal connection whatsoever with the accident." It can not be held as a matter of law, notwithstanding the warning being given to her sense of sight, that factually the plaintiff might not have been aided by the sense of hearing better to have determined the line of approach of the defendant's automobile, in order in split seconds of calculation to have veered to the right and have avoided the collision, when she was otherwise being blinded by the lights of the defendant's car. Under the evidence it was a question for the jury to determine whether, under the provisions of Code, § 68-303, subd. j, the highway was "not clear" and whether, under the provisions of Code, § 68-306, the defendant was approaching along a "descent or other dangerous place" along the highway, when it would be the duty to give the warning of blowing the horn, as required by these sections, and whether such failure was negligence proximately causing the collision. Such negligence would be negligence per se. While this charge of negligence was not set up by the petition, it was nevertheless set up by evidence unobjected to; the pleadings would have been amendable to allow the evidence. The court, while not required to give, did not err in giving, this charge to the jury. Rocker et al. v. DeLoach, 178 Ga. 480 (2), 173 S.E. 709; Kelly v. Locke, 57 Ga.App. 78, 89, 194 S.E. 595; Simpson Grocery Company v. Holley, 51 Ga.App. 355, 357 (3), 180 S.E. 501.

2. Error is assigned to the following excerpt of the charge of the court to the jury: "I charge you that the statute and the law of this State which requires that every motor vehicle be equipped with suitable device for dimming the lights or changing the focus so as not to have dangerously glaring or dazzling lights which might blind a driver meeting such car, by necessary implication and reasonable intendment means that a person meeting another car should dim his lights so they will not be dangerously glaring and calculated to blind an approaching motorist. So if you find in this case that the defendant did not dim his lights or change the focus to prevent them from being dangerously glaring or dazzling, that the defendant negligently failed to do this so that Mrs. Henry was blinded, and Mrs. Henry while using due care herself was blinded and a dangerous situation was produced by defendant's negligence, if you find defendant was negligent in this respect, then you would be authorized to find for the plaintiff." The court, having elsewhere in the charge instructed the jury that the proven act or acts of negligence of the defendant must be the proximate cause of the injuries, and that the injuries must be proven, before the plaintiff might recover, did not err in giving the above excerpt in charge to the jury. Neither was this charge error because, as contended by plaintiff in error, "the court instructed the jury that a failure to dim one's lights constituted negligence, although it is not provided by law that an operator shall dim or change the focus of his lights upon approaching another" car coming from the opposite direction. Code, § 68-302, provides: "The front lamps" of an automobile "shall throw light to a reasonable distance in the direction in which such vehicle is proceeding and shall be provided with a suitable device for dimming or changing focus, so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers." The above excerpt of the court's charge to the jury under this provision of the Code was proper. The failure to so provide a car with lights would be negligence per se; the failure to dim the lights, while negligence, would not be negligence per se, as the requirement to dim is by inference and not by mandate. American Bakeries Co. v. Johnson, 59 Ga.App. 150, 152 (9), 200 S.E. 485; Fender v. Drost, 62 Ga.App. 345, 349, 7 S.E.2d 800.

3. Special assignments of error, grounds 3 and 4, which complain of over-emphasis of contentions of the plaintiff in that the court failed to charge on the "main contention of the defendant to the effect that" the plaintiff "was on the wrong side of the road and that her negligence in this respect was the proximate cause of the collision," are without merit save only as they are related to this failure to charge, whether meritorious or not, which is the subject matter of assignment of error under ground 8 of the amended motion for new trial. This assignment is considered separately. Special assignment, ground 5 of the amended motion for new trial, is without merit, and needs no discussion.

4. Special assignment of error, ground 6 of the amended motion for new trial, is lacking in merit. The excerpt of the charge criticised, when considered with the entire charge, was in effect an instruction to the jury that the sick or diseased, as well as the healthy, may recover for injuries proximately caused by the negligence of another.

5. Error is assigned, ground 7 of the amended motion for new trial, to the following excerpt of the charge of the court to the jury: "If you find that at that time she had any physical ailment or disease which was incipient and dormant, if you find *** under the rules of law as I have given you in charge as applied to the facts that she received an injury due to the negligence of the defendant, if you find he was negligent, and that injury * * resulted in an aggravation of the disease already pending, if you find she was diseased, the plaintiff would be entitled to recover. Just what amount, gentlemen, is addressed to this jury." This assignment is not meritorious save only to the extent that the court should not have charged "Just what amount, gentlemen, is addressed to this jury," but should have charged "'Recovery in that case would be to the extent you find the infirmity was aggravated by the injury."' City of Atlanta v. Hampton, 139 Ga. 389, 393, 77 S.E. 393, 395. This error will not require a reversal. In charging the jury care should be observed not to restrict the charge to "physical" ailment or disease unless the issues so require. An ailment may be either of the body or mind (Atlantic & Birmingham Railroad Company v. Douglas, 119 Ga. 658 (2), 46 S.E. 867) and aggravation of the disease may be accordingly.

6. In special assignment of error, ground 8 of the amended motion for new trial, error is assigned to the failure of the court to charge the jury "the contention of the defendant namely, that the accident was caused by the act of the plaintiff in not keeping to the right of the center of the highway as her and the defendant's automobiles met and in connection therewith the rule of law,--that an operator meeting another vehicle coming from the opposite direction shall turn to the right of the center of the highway so as to pass without...