Whiteway Laundry & Dry Cleaners, Inc. v. Childs

• Decision Date: 15 June 1972
• Docket Number: 3,Nos. 46757,2,Nos. 1,46816,s. 46757,s. 1
• Citation: 191 S.E.2d 454,126 Ga.App. 617
• Court: Georgia Court of Appeals
• Parties: WHITEWAY LAUNDRY & DRY CLEANERS, INC. v. Eloise CHILDS. Eloise CHILDS v. WHITEWAY LAUNDRY & DRY CLEANERS, INC

Page 454

191 S.E.2d 454

126 Ga.App. 617

WHITEWAY LAUNDRY & DRY CLEANERS, INC. v. Eloise CHILDS.

Eloise CHILDS v. WHITEWAY LAUNDRY & DRY CLEANERS, INC.

Nos. 46757, 46816.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 15, 1972.

Rehearing Denied July 10, 1972.

Falligant, Doremus & Karsman, Stanley M. Karsman, Savannah, for appellant.

David S. Bracker, Brannen & Clark, Fred S. Clark, Savannah, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Eloise Childs filed her complaint against Whiteway Laundry & Dry Cleaners, Inc., seeking to recover damages for injuries suffered when she was struck by the defendant's truck in the crosswalk at the intersection of Bay and Bull Streets in Savannah. The intersection is controlled by traffic lights. Bay Street is a four-lane street, with two lanes for eastbound and two for westbound traffic. Bull Street is a two-lane street, and Bay Street forms a T-type intersection with it. Mrs. Childs, a pedestrian, was walking south on Bull Street. As she came to its intersection with Bay Street, she proceeded across the intersection, having a green light, and walking from the north side of Bay Street to the south side of Bay Street in the easterly crosswalk designated for pedestrian crossing.

When she started across the intersection, a motor vehicle truck, owned by defendant, and operated by its agent, Johnny Kellam, was facing west on Bay Street at the Bull Street intersection, occupying the inside lane, and was stopped while waiting for the red light to change; but it started forward suddenly, while the light was still red, and struck and seriously injured Mrs. Childs.

(While the testimony was conflicting, there was ample evidence from which the jury could have found that Mrs. Childs had a green light, and that the truck was stopped for a red light, but suddenly started forward and ran into her while the light was still red).

The jury returned a verdict for plaintiff, and defendant appeals in Case No. 46757. In Case No. 46816 plaintiff appeals from the order of the trial court denying her motion to dismiss defendant's appeal on the ground that defendant did not timely file the transcript. Plaintiff has made a similar motion to dismiss in this court in Case No. 46757. Held:

1. Motions to dismiss defendant's appeal are without merit. The notice of appeal was filed August 30, 1971, and the transcript was timely filed on September 22, 1971. Code Ann. § 6-806. The basis of the motions is that defendant had not caused the transcript to be officially filed at the time the hearing on the motion for new trial was held. However, the court reporter had prepared the transcript and furnished copies to counsel who utilized it in preparing and arguing the amended motion for new trial, and it appears that the court considered the evidence in denying the motion. Under the Appellate Practice Act the trial judge may, in his discretion, hear and determine a motion for new trial before the transcript is prepared and filed. Code Ann. § 70-301; A. M. Kidder & Co. v. Clement A. Evans & Co., 117 Ga.App. 346(1), 160 S.E.2d 869; Warren v. Mann, 117 Ga.App. 787, 161 S.E.2d 894.

2. Error is enumerated on the failure of the trial court to grant a motion for mistrial based upon a statement by the court to the entire array of jurors that certain cases had been settled and the instant case would be tried the following day if it were not settled. The exact words of the court were not reported, and counsel for defendant, in attempting to repeat the words in his motion for mistrial, state that, 'It may not be exactly right, but it's right as I recall.' In response plaintiff's attorney stated: 'And in answer to Mr. Karsman's interpretation of what took place, I want it to appear in the record that counsel for plaintiff vigorously disagrees and the court was merely attempting, which is customary, to thank the jurors for their services, which we are highly in accord with.' The judge, in ruling on the motion, did not repeat the exact words used and thus settle the record. Under these circumstances we think the transcript is insufficient to support the contention or to show reversible error. Travis v. State, 122 Ga.App. 800(3), 178 S.E.2d 741; Johnson v. State, 123 Ga.App. 857(2), 182 S.E.2d 701. And see City of Macon v. Smith, 117 Ga.App. 363, 372(6), 160 S.E.2d 622; Hurd v. State, 125 Ga.App. 353(1), 187 S.E.2d 545.

3. There is sufficient evidence which, if believed by the jury, would authorize them to find that plaintiff entered the intersection on a green light and was walking in a pedestrian crosswalk. The general grounds are without merit.

4. Objection was made and overruled as to testimony of the investigating police officer, who was recalled for the purpose of relating a statement made by witness Mitchell at the scene of the occurrence. The officer's testimony was offered and admitted solely for the purpose of impeaching Mitchell by showing prior contradictory statements; the proper foundation was laid; Mitchell's statements at the scene and on the trial were contradictory; and no error appears. Code § 38-1803; McKinney v. Pitts, 109 Ga.App. 866(3), 137 S.E.2d 571; Stubbs v. Daughtry, 115 Ga.App. 22(2, 3), 153 S.E.2d 633; Sheffield v. State, 125 Ga.App. 295(2), 183 S.E.2d 525.

5. 'The mere failure of the court to state in express terms that the contentions, as made in the pleadings, were not evidence, there being nothing in the charge to indicate to the jury that those contentions could be considered as evidence, is not ground for the grant of a new trial.' Shore v. Ferguson, 142 Ga. 657(3), 83 S.E. 518; Lassiter v. Poss, 85 Ga.App. 785, 790, 70 S.E.2d 411.

6. Upon review of the portion of the charge complained of in enumeration 2(L), taken in conjunction with the charge as a whole, we find no reversible error.

7. Appellant stated at the trial that he had no objection to the portion of the charge now complained of in enumeration 2(M), and we find no substantial error harmful as a matter of law. Code Ann. § 70-207(a, c); Irvin v. Oliver, 223 Ga. 193(2), 154 S.E.2d 217; Seibers v. Morris, 226 Ga. 813(1), 177 S.E.2d 705; Stevens v. Stevens, 227 Ga. 410, 413(4), 181 S.E.2d 34; Murray v. Americare-Medical Designs, Inc., 123 Ga.App. 557(1), 181 S.E.2d 871.

8. Enumeration of error 2(N), complaining of the refusal to give a requested charge, is without merit since the last-minute request was not submitted in accordance with Code Ann. § 70-207(b).

9. Enumeration 2(O) complains that the court erred in charging the jury as to the duty of defendant's driver to have his vehicle under control at the time of the occurrence and the legal result of a failure to do so, asserting that there was no evidence to support the charge. However, the record discloses that there was conflicting evidence as to this point, and no error is shown.

10. Strenuous objection was made at the trial, and is now made in this court, to the following charges: 'Ladies and gentlemen of the jury, I further charge you that the driver of an automobile is bound to use reasonable care to anticipate the presence on the street of other persons having equal rights with themselves to be there. Conversely, a pedestrian, when lawfully using the public highways, is not bound to be continually looking and listening to ascertain if automobiles are approaching.

'I charge you further, members of the jury, that the law does not restrict a pedestrian to any particular part of the highway for the purpose of travel, and said plaintiff had a right to cross said highway at the place set out in the complaint, and the operator of the truck must anticipate that a pedestrian may cross said highway at said point.'

There was no error in giving the above charges. Code Ann. § 68-1658 (Ga.L.1953), Nov. Sess., pp. 556, 593) in pertinent part provides: '. . . every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway . . .'

Claxton v. Hooks, 68 Ga.App. 383, 385, 23 S.E.2d 101, 103, provides: 'The driver of an automobile is bound to use reasonable care, and to anticipate that persons along a public street or highway and other persons having equal rights with him may be there.' Eubanks v. Mullis, 51 Ga.App. 728, 730, 181 S.E. 604, uses almost the exact language as is quoted from Claxton, supra. Leggett v. Brewton, 104 Ga.App. 580, 583, 122 S.E.2d 469, 472, holds (Judge Eberhardt speaking for the court), that it was error to refuse to give a written request in the exact language of the request, as follows: 'I charge you that under the law of Georgia C. H. Brewton was bound to use reasonable care and to anticipate that persons along public streets and highways and other persons having equal rights with him might be there. Mr. Brewton had no right to assume that the road in front of him was clear of traffic but was under a duty to keep a vigilant lookout ahead for traffic.'

Our attention has been called to the case of Shelton v. Rose, 116 Ga.App. 37, 156 S.E.2d 659, but that case upholds the right to charge on 'equal rights at an intersection.' Our attention is also called to Taylor v. Crawford, 119 Ga.App. 262, 167 S.E.2d 404, but in that case there was an intersection with a traffic light and marked crosswalk, but the pedestrian was not at the intersection but was 100 feet from it, in the middle of Broad Street in the City of Augusta, where there was no crosswalk. Further, a city ordinance was introduced into evidence which required pedestrians not crossing at crosswalks to yield the right of way to vehicular traffic. This case, therefore, is not applicable and shows no reason for reversing the trial court in the case sub judice.

The case of Wells v. Alderman, 117 Ga.App. 724, 162 S.E.2d 18, is called to our attention, especially Divisions 2 and 5. In Divisions 2 and 5, it was held improper to charge as to crossing in a crosswalk if the evidence does not show a crosswalk, and Division 5 deals with...