Whatley v. Henry

Decision Date16 July 1941
Docket NumberNo. 28837.,28837.
Citation16 S.E.2d 214
PartiesWHATLEY. v. HENRY.
CourtGeorgia Court of Appeals

Rehearing Denied July 31, 1941.

[COPYRIGHT MATERIAL OMITTED.]

[COPYRIGHT MATERIAL OMITTED.]

Syllabus by the Court.

1. When one motorist is meeting another, it is his duty to sound his horn, or give other like warning, when traveling along a highway "not clear, " as defined under Code, § 68-303, subd. j, or along a "descent or other dangerous place" on the highway, as defined under Code, § 68-306; a failure to comply with this requirement would be negligence per se. This duty is unrelated and independent of any other duty required of the motorist by common law or by statute and is not relaxed by reason of the fact that the motorist is currently complying, day or nighttime, fully with such other duties. It would still remain, in such an instance, whether the failure to give the warning were the proximate cause, or, with other negligence, had causal connection, in proximately causing the injuries. The charge of the court to the jury was not error, notwithstanding the issue of negligence against the defendant was raised only by evidence unobjected to, the pleadings being amendable.

2. The failure of a motorist while traveling along a highway at night to have provided his automobile with front lamps of the character as required by Code, § 68-302, is negligence per se; while the failure to dim such lights is negligence, it is not negligence per se, as the requirement to dim is by inference and not mandate.

3. Assignments of error for over-emphasis by the court in charging the jury on the contentions of the plaintiff fail of merit where based on the court's failure to charge also on a contention of the defendant when such failure, the subject matter of a different assignment, is itself without merit.

4. The sick or diseased, as well as the healthy, may recover for injuries proximately caused by the negligence of another. The recovery may be not only for those independent of, but also in aggravation of, such sickness or disease.

5. As to injuries received in aggravation of sickness or disease, the charge of the court to the jury should be that recovery would be to the extent the jury finds the infirmity is aggravated by the injury. An "infirmity" may be either of the body or the mind.

6. The requirement of the court to charge the jury, in the absence of a timely, written request, is, as against error, no greater than that "Instructions to the jury should be confined to the issues made by the pleadings in the case." On the issue of contribu tory negligence by the plaintiff (a) it is reversible error to fail to charge the jury on the issue when it rests only, and even though only, on allegations of "conclusions, " but the requirement to charge is met when the court charges the jury tracingly within the scope of the "conclusions" as pleaded, (b) when a factual, distinct issue of contributory negligence arises under the evidence but extraneous to and beyond the scope of the pleaded conclusions, there is no requirement, in the absence of a timely, written request, on the court to charge the jury on such contention and the law applicable thereto; the failure to charge is not error.

7. Whether or not the court erred in failing to find a witness an expert and in failing to admit his testimony is immaterial, when it further appears that the opinions or conclusions sought were not within the provisions of Code, § 38-1710, but were only as to things obvious and objective and capable of detail to the jury from which they might, within their province, draw their own conclusions. Whether the witness was an ordinary witness or an expert, the opinions or conclusions in the instant case were inadmissible.

8. When a motion for new trial is based on allegedly newly discovered evidence, a failure to comply with the provisions of Code, § 70-204, as to the adducement of affidavits as to the associates of the witness by whom the newly discovered facts are to be proven, will, without reference to other defects in reference thereto, defeat the motion.

9. As to the defendant, it is not harmful error to fail to charge the jury on the plaintiff's right to recover for special property damage as an element of recovery in a tort action for personal injuries.

10. In considering assignments of error on the usual general grounds, the court must construe the evidence most strongly in favor of the verdict; in the light to sustain the verdict; and to that end, must resolve all conflicts of evidence in favor of the prevailing party. Under the above rule, there was sufficient evidence to support the verdict

Error from Superior Court, Taylor County; George C. Palmer, Judge.

Action in tort by Mrs. W. E. Henry against Thurmond Whatley to recover damages for property and personal injuries allegedly sustained by plaintiff as result of an automobile collision. To reviewa judgment for plaintiff, defendant brings error.

Affirmed.

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 re duce 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. De-Loach, 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, bynecessary 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...

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6 cases
  • Adams v. Sears, Roebuck & Co.
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1997
    ...... defendant to be the sole proximate cause." (Citations omitted; emphasis in original.) Whatley v. Henry, 65 Ga.App. 668, 674, 16 S.E.2d 214 (1941); see also Carrandi v. Sanders, 188 Ga.App. ......
  • Dickerson v. Hulsey, 51377
    • United States
    • United States Court of Appeals (Georgia)
    • February 19, 1976
    ...decide. It would have invaded and province of the jury. See Shaw v. Jones, Newton & Co., 133 Ga. 446(2), 66 S.E. 240; Whatley v. Henry, 65 Ga.App. 668(7), 16 S.E.2d 214. She simply testified to (and alleged in her complaint) facts that require the conclusion that defendant was negligent res......
  • Heath v. L.E. Schwartz & Son, Inc., A90A2149
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 1991
    ...(1880). For an enlightening discussion of the distinction between contributory and comparative negligence, see Whatley v. Henry, 65 Ga.App. 668, 674-675, 16 S.E.2d 214 (1941). The trial court also instructed the jury on comparative negligence, proximate cause, and pre-existing Pretermitting......
  • Whatley v. Henry
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1941
    ... 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. [16 S.E.2d 215] . [Copyrighted Material Omitted]. [16 S.E.2d 216] . [Copyrighted Material Omitted]. [16 S.E.2d 217] ......
  • Request a trial to view additional results

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