White v. Knapp

• Court: Georgia Court of Appeals
• Writing for the Court: BELL, J.
• Citation: White v. Knapp, 31 Ga.App. 344, 120 S.E. 796 (Ga. App. 1923)
• Decision Date: 07 December 1923
• Docket Number: 14834.
• Parties: WHITE v. KNAPP.

120 S.E. 796

31 Ga.App. 344

WHITE v. KNAPP.

No. 14834.

Court of Appeals of Georgia, Second Division

December 7, 1923

Syllabus by the Court.

This was an action for damages for an injury received by the plaintiff while riding a bicycle, in a collision with an automobile driven by the defendant, when the parties were traveling in opposite directions upon a public highway. A verdict was found for the plaintiff, and the defendant excepted to the overruling of his motion for a new trial. There was some evidence to authorize the inference that the defendant was traveling at the time on the left side of the road, and was negligent in so doing; it being within the province of the jury to believe such evidence, although disputed. The question of proximate cause was also one for the jury under the evidence, and the verdict was not unsupported. Civ. Code 1910, § 628; Laws 1921, p. 255.

An instruction that ordinary care and diligence "is that care and diligence which every prudent man exercises under the same or similar circumstances" was not erroneous, on the ground that it authorized the jury to require of the defendant a degree of diligence which might be exercised by the most prudent or by any one more than ordinarily prudent. Civ. Code 1910, § 3471; Richmond & Danville R. Co. v Mitchell, 92 Ga. 77 (2), 18 S.E. 290; Sanders v Central of Georgia Railway Co., 123 Ga. 763 (4), 51 S.E 728; City of Atlanta v. Harper, 129 Ga. 415 (1), 59 S.E. 230; Collum v. Georgia Railway & Electric Co., 140 Ga. 573 (3), 79 S.E. 475.

The sole contention of each of the parties was that he himself was not negligent, but that the other party was, and that the other party's negligence was the cause of the injury. Under such issues, the charge to the jury, "You look to the evidence, and all of the circumstances shown upon the trial, and find who was guilty of negligence in this case who was in fault," was not error, upon the ground that it assumed that the injury was caused by some one's negligence, or that it excluded the theory of accident. No such theory was involved.

In none of the excerpts from the charge assigned as error did the trial judge intimate or express an opinion as to what had or had not been proved, in violation of Civ. Code 1910, § 4863. The court's statement of the plaintiff's contentions was not argumentative or otherwise unfair to the defendant.

The court charged the jury as follows: "Now it is contended in this case by the plaintiff that he was riding along the public highway in the direction of Macon, and that defendant was driving an automobile in the opposite direction--that is, going away from the city of Macon--and plaintiff was on the right-hand side of the roadway going in the direction that he was traveling, and that defendant was approaching him on the right-hand side of the roadway going in the direction in which defendant was traveling, and that defendant, immediately before they were passing, suddenly and without warning to plaintiff cut his automobile over to the left-hand side of the road upon which plaintiff was traveling, and that plaintiff was struck by the automobile and dragged back across the road and injured, and that plaintiff at the time was exercising ordinary care and diligence, and that, as soon as he saw defendant was cutting his car across to the left of the road, in order to avoid the injury which appeared to him to be imminent, by colliding with the car, he cut his bicycle across to the left side of the road in order to avoid the collision, but that he was unable to do so, and was injured by no fault of his, due to the negligent operation of defendant of his automobile. The court charges you that if you believe that those contentions have been sustained by a preponderance of the evidence it would be your duty to bring in a verdict for the plaintiff." (Italics ours.) This charge was not a violation of the well-known and oft-repeated rule that it is error for the trial judge to tell the jury that certain acts will constitute negligence, where the acts are not negligent per se. The excerpt was not erroneous for any reason assigned.

Error is also assigned upon the following charge: "The court charges you in that connection, that if you should believe from the evidence that plaintiff was negligently and suddenly put in a place of peril by the defendant, with insufficient time to consider all the facts and circumstances which surrounded him, the law would not require of him the same degree of care and caution that it would a person who had ample time for the exercise of his judgment. In other words, when a person is suddenly put in the position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation." The first sentence of this charge was perhaps inaccurate. The degree of care which the plaintiff was required, under the law, to exercise was not changed by the circumstances, though a particular act might comport with such degree under one set of circumstances and not under another. Compare Atlantic Coast Line R. Co. v. Daniels, 8 Ga.App. 775, 70 S.E. 203. But, considering the excerpt as a whole, it could not have been construed as relieving the plaintiff from the duty of exercising ordinary care under the circumstances, as to which the jury were elsewhere correctly instructed, and was not an invasion of the province of the jury in regard to the "accountability" to be required, in view of the application solely to an emergency "so great" that the party would "have to act without having time to think." See Atlantic Coast Line R. Co. v. Daniels, supra; Smith v. Wrightsville & Tennille R. Co., 83 Ga. 671 (1), 10 S.E. 361; Central of Georgia Railway Co. v. McGuire, 10 Ga.App. 483 (4), 73 S.E. 702; Georgia Railway & Electric Co. v. Gilleland, 133 Ga. 621 (7), 66 S.E. 944.

The plaintiff was injured on June 27, 1922. The trial was on March 16, 1923. Both bones of one of the plaintiff's legs were broken in two, and one bone punctured the skin. A physician testified "that near the place of the injury there develops a lump or callous, and that never disappears." The plaintiff testified that the place of the injury would still hurt him occasionally, as late as the date of the trial; "it's just a dull, throbbing kind of pain." Under these circumstances the following charge: "The damages which the plaintiff claims he is entitled to in this case are for pain and suffering. He contends that he was injured at the time of the accident, and that he has continued to suffer down to the present, and that he will always suffer, and that he is entitled to receive a verdict at your hands for pain and suffering, which he contends will be permanent"--was not erroneous upon the ground that it would authorize a finding in favor of the plaintiff for permanent pain and suffering, without any evidence that the pain and suffering would be permanent. While the physician testified further that the plaintiff ought not to suffer any pain in the future, this testimony was not controlling of the issue. "The jury were authorized to infer that the effect of the injuries would be permanent, from the character of the suffering and the length of time it had continued. This is true, although a physician testified that the injuries were temporary. The question was for the jury, who could, if they saw fit, attach as much probative value to the testimony of the person injured as to the opinion of the physician. Southern Ry. Co. v Tankersley, 3 Ga.App. 548 (60 S.E. 297); Goodwyn v. Central Ry. Co., 2 Ga.App. 470 (58 S.E. 688); City of Atlanta v. Champe, 66 Ga. 663; Atlanta Street Ry. Co. v. Walker, 93 Ga. 467 (21 S.E. 100); Macon Ry. & Light Co. v. Streyer, 123 Ga. 279 (51 S.E. 342)." Southern Railway Co. v. Petway, 7 Ga.App. 659 (1), 67 S.E. 886. Furthermore, the deformity or unnatural condition resulting from the injury, which, according to the evidence of the physician, will be permanent, could be considered by the jury as a lasting element of pain and suffering, and this fact alone would have warranted the instruction. Western & Atlantic R. Co. v. Sellers, 15 Ga.App. 369 (3), 83 S.E. 445; Social Circle Cotton Mill...