Eidson v. Felder , 69 Ga. App. 225 ( 1943 )

The verdict for the plaintiff being authorized under the evidence, and not being excessive, and no error appearing in any of the grounds of the motion for new trial, it was proper to overrule the motion.

DECIDED MARCH 13, 1943. REHEARING DENIED MARCH 26, 1943. The bill of exceptions assigns error on the overruling of the motion for new trial interposed by the defendants, Milton Eidson and Sam Daniel Jr., on the rendition of a verdict for $10,000 in an action brought by Mrs. I. D. Felder against those two defendants and S. G. Maddox, to recover damages for the death of the plaintiff's husband in an automobile accident alleged to have resulted from the joint and concurrent negligence of the defendants. Eidson and Daniel filed general and special demurrers to the petition, and excepted to the judgment overruling them. This court affirmed that judgment, holding that the petition set out a cause of action against all of the defendants. The report of that decision contains a complete statement of the case, and of the manner in which the plaintiff's husband met his death and the acts of the defendants relative thereto. Eidson v.Felder, 68 Ga. App. 188 (22 S.E.2d 523). Eidson and Daniel denied liability, and alleged that the death of the plaintiff's husband was caused by the negligence of Maddox, and that the plaintiff's husband, who at the time of his death was riding as a guest and on the front seat of the automobile beside Maddox, who was driving, was negligent and failed to use ordinary care for his own safety, because he did not warn Maddox of the impending danger, and did not caution him as to the speed of his automobile as it approached the school bus belonging to Eidson and operated by Daniel. On the trial the plaintiff introduced evidence tending to support her allegations. The evidence for Eidson and Daniel was to the effect that the driver of the bus was not negligent; that while the driver of the bus did not, just before the time when it was struck by the automobile in which the plaintiff's husband was riding, extend his left hand out of the bus in a horizontal position, as required by the Georgia statute, such bus was equipped with a red and yellow flag which at the time was extended in a horizontal position on the left side of the bus, and which indicated to one traveling in the highway to the rear of the bus that the bus was either about to stop on the right side of the highway or was about to make a turn to the left; and that the plaintiff's husband was killed as the result of the negligence of Maddox, in that the automobile was being operated at a highly excessive rate of speed and without regard to the safety of its passengers and the safety of others using the highway. The defendants' evidence was also to the effect that the bus was in plain view of the approaching automobile, with the flag extended on the left side a sufficient distance ahead of the automobile to indicate to Maddox, had he been exercising ordinary care, that the bus was either about to stop or to make a left turn.

The jury resolved the issues in favor of the plaintiff, and returned a verdict of $10,000 against all three defendants. The motion by Eidson and Daniel for a new trial was overruled. Eidson and Daniel excepted, making Maddox a party defendant in error.

In their answer Eidson and Daniel alleged that for a distance of several hundred feet before making a left turn into the intersection there had been extended from the left side of the bus a large red and yellow flag, "plainly visible to indicate the bus's intention to stop or make a left turn." The plaintiff moved to strike that allegation, on the grounds, (a) that such allegation, if true, would not relieve the bus driver from the legal duty to extend his arm; (b) that such signal is neither contemplated nor authorized by law as a signal, to other traffic approaching or following the bus, of the intention of the driver to stop or make a left turn; (c) that such signal is not legally sufficient to put the driver of a vehicle approaching from the rear or from the front on notice that the bus driver intends to make a left turn; and (d) that such signal is not legally sufficient to relieve the bus driver of his duty to control and direct the bus in the manner required by law. The judge overruled the motion to strike, and the plaintiff excepted pendente lite, and by cross-bill of exceptions she assigned error on that ruling. 1. The evidence for the plaintiff tended to support the allegations of the petition. Therefore, this court having ruled that the petition set out a cause of action against Eidson and Daniel as well as against Maddox, there is no merit in the contention of Eidson and Daniel that the evidence did not authorize a verdict in favor of the plaintiff against them as joint tort-feasors with Maddox, but required a finding that the proximate cause of the death of the plaintiff's husband was the negligence of Maddox, and that no alleged negligence of the driver of the school bus proximately caused the death of her husband and concurred with the negligence of Maddox in causing his death. The verdict against the three defendants was authorized.

2. In the first special ground of the motion for new trial Eidson and Daniel contend that the court erred in not charging to the jury "the principle of law that a guest can not close his eyes to known or obvious dangers arising either from the acts of the host or from the acts of others; and that if there is danger from either cause, and the circumstances are such that it would become apparent to a person of ordinary prudence in like circumstances, then it would be the duty of the guest to do whatever, in the opinion of the jury, a person of ordinary prudence would or should do in the same or like circumstances." There was no request to charge as above quoted. These defendants insist that it was error not to charge the jury as indicated, even without a request, in view of the fact that their answer alleged that the plaintiff's husband was riding in the front seat of the automobile, that he was awake, that he had opportunity to observe the speed of this automobile, and that although Maddox was driving the automobile at more than seventy-five miles an hour the plaintiff's husband did not request him to slow down, nor did he warn Maddox against passing the school bus at an intersection, or warn him that there was extended from the bus a red and yellow flag indicating the intention of the driver to stop the bus or to make a turn. These defendants contend that in view of these allegations, and of the fact that the evidence "overwhelmingly" sustained them, it was the duty of the judge to instruct the jury specifically as above quoted.

The court charged the jury that the plaintiff could not recover "unless she makes it appear to your satisfaction by a preponderance of the evidence that her deceased husband . . was in the exercise of ordinary care and diligence at the time of the alleged accident;" also that "if you believe by a preponderance of the evidence that the plaintiff's husband . . could have, by the exercise of ordinary care and diligence, avoided the consequences to himself caused by the defendants' negligence, if you find that the defendants or either of the defendants were negligent, then the plaintiff would not be entitled to recover." The court followed these instructions by defining to the jury the meaning of ordinary care and diligence as set out in the Code, § 105-201. The court also charged as follows: "If you should find from the evidence that the defendant S. G. Maddox was negligent in certain particulars, and that the defendants Eidson and Daniel were negligent in certain particulars, and that the deceased I. D. Felder was negligent in failing to exercise ordinary care for his own safety, and if you should further find the negligence of I. D. Felder was equal to or greater than the negligence of the defendants Eidson and Daniel, your verdict should be in favor of the defendants Eidson and Daniel, even though you should find that the negligence of Eidson and Daniel concurred in and contributed with the negligence of Maddox in causing Felder's death." Under the facts of this case it was not error for the court to fail to charge the jury in the language set out in this ground. If these defendants had desired a more detailed instruction relative to the negligence of the plaintiff's husband a written request therefor should have been made. See Black White Cab Co. v. Smith, 48 Ga. App. 566 (173 S.E. 206);Georgia Power Co. v. Jones, 54 Ga. App. 578, 586 (188 S.E. 566). Nothing to the contrary was held in Whatley v. Henry,65 Ga. App. 668, 673 (16 S.E.2d 214). The pleadings and the evidence did not require the court, in the absence of a special request, to charge the jury as contended. The present case is not like such cases asSouthern Cotton-Oil Co. v. Caleb, 143 Ga. 585 (85 S.E. 707), and Atlanta c. Railway Co. v. Gardner, 122 Ga. 82 (8) (49 S.E. 818). The ruling now made, relatively to the principle contended for in this ground, does not conflict with the decisions in Russell v. Bayne, 45 Ga. App. 55 (163 S.E. 290), Mann v. Harmon, 62 Ga. App. 231 (5) (8 S.E.2d 549).

3. The plaintiff was seeking to recover against all three of the defendants. Therefore it was not error for the court to charge the jury as follows: "I charge you that in the case at bar, if you find from the evidence that the plaintiff's husband . . was riding by the invitation and gratuitously in the automobile of the defendant S. G. Maddox, then under such circumstances there arose the duty on the part of the defendant Maddox to exercise only slight care for the safety of the plaintiff's husband, and plaintiff's said husband assumed the risk and the ordinary perils of the highway, and also assumed the ordinary risk incurred by reason of any ordinary neglect on the part of the defendant; and I further charge you that the burden would be upon the plaintiff to prove in this case by a preponderance of the evidence that her said husband's homicide was caused by the defendant's negligence in driving, and that this negligence amounted to gross negligence, and was not a risk of the ordinary perils of the highway, and of ordinary negligence on the part of the defendant Maddox; otherwise, you should find in favor of the defendant Maddox and against the plaintiff." The contention of Eidson and Daniel, that this charge, even if abstractly correct as related to the issue between the plaintiff and Maddox, was erroneous as to them, because the jury were authorized thereby to conclude that there was no duty on the part of the plaintiff's husband to take any steps for his own protection in so far as the plaintiff's right to recover against Eidson and Daniel was concerned, is without any merit. The plaintiff was seeking to recover against Maddox as well as against Eidson and Daniel, and it was incumbent on the court to charge the law relatively to the plaintiff and Maddox as well as to the plaintiff and the other defendants. The charge, even if error, would not have been error as against Eidson and Daniel. It was not subject to the criticism of these defendants; and the jury were not authorized thereby to conclude that it was not the duty of the plaintiff's husband to take any steps for his own protection in so far as these defendants were concerned. The court in the charge as a whole sufficiently charged the jury as to the duty of the plaintiff's husband to exercise ordinary care for his own safety, relatively to all of the defendants. The court can not charge all of the law applicable in one breath. The court here was charging the law applicable to Maddox, and not the law as to the other defendants.

4. There is no merit in the contention in ground 3, that the judge erred "in failing to charge the jury that in the event they found that the deceased was negligent, but his negligence was less than that of the defendants, the damages should be diminished in proportion to the amount of fault attributable to the plaintiff's husband." There was no request for this principle. Comparative negligence was not pleaded by these defendants in reduction or mitigation of damages; and therefore this defense was not directly involved, and in the absence of a timely request the judge did not commit error in not charging thereon. W. A. Railroad v. Jarrett, 22 Ga. App. 313 (3), 319 (96 S.E. 17).

5. The court charged the jury as follows: "The degree of care and foresight which is necessary to use in any given case must always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence which is to be anticipated and guarded against." In ground 4 Eidson and Daniel assign error on this excerpt. They contend that the above instruction was calculated to make the jury believe that they owed to the plaintiff's husband the duty of extraordinary care, for the reason that Daniel was driving the school bus in which there were between twenty-five and thirty school children, and to these children these defendants owed the duty of extraordinary care. This charge is not error for any of the reasons assigned.

6. The court did not err in charging the jury "that the operator intending to stop, or to turn his vehicle to the left or right, shall extend the hand or arm horizontally from and beyond the left side of the vehicle." The operator of a motor vehicle on the public highways of this State is required by statute to do as stated in the charge. Code, § 68-303 (f). In Folds v. AutoMutual Indemnity Co., 55 Ga. App. 198 (189 S.E. 711), this court held: "The operator of a motor vehicle who intends to stop is not relieved from the statutory obligation to extend his arm horizontally as a warning by the fact that his vehicle is equipped with a device which, on applying the brakes, causes red lights and a `stop' sign to be displayed on its rear." It follows that the operator of the bus who intends to stop or to make a turn to the left or right is not relieved from the statutory obligation to extend his arm horizontally, as a warning or signal that he so intends, by the fact that his vehicle is equipped with a red and yellow flag which he causes to extend horizontally on the left side of his bus when he intends to stop or to make a turn.

7. While Maddox was being cross-examined the plaintiff's counsel asked him this question: "Did you have an occasion to observe the extension from that bus of a little flag?" Maddox answered, "I did not." Thereupon counsel stated: "To keep the record clear by an agreement of opposing counsel, it is understood that the matter, or anything said by the witness about a little flag, that we object. If it was being used, it would be no notice to any one. The law requires you to put your hand out, and it would not have any probative value, and is irrelevant and immaterial." The court replied, "Overruled. I will let it go in for the purpose for the jury to consider as to what care and caution the driver took at that time." These defendants assign error on this ruling in limiting the admission of evidence relatively to the red and yellow flag. We think the ruling was correct. This court has ruled in effect that the State statute (Code, § 68-303 (f)) as to extending the arm horizontally is not superseded by some mechanical attachment on the vehicle placed there for the purpose of signaling to other users of the highway the intention of the driver to stop his vehicle or make a turn.

8. The court did not err in refusing to permit R. H. Weaver, a State patrolman, to testify in behalf of these defendants that in his judgment a red and yellow flag extended from the school bus would be much more visible than the arm or hand of the driver extended horizontally, as required by the State statute.

9. A witness called by these defendants, while being cross-examined by counsel for Maddox, was asked whether he saw the automobile of Maddox before it struck the bus. He answered: "Yes, sir; and it was really and truly flying." Counsel for Maddox objected to the answer as not responsive and as stating a conclusion, and the court sustained the objection. While perhaps the court should have permitted the answer, a new trial will not be granted for that reason.

None of the grounds of the motion showing error, and it appearing that the verdict of $10,000 for the death of plaintiff's husband (who, as shown by the evidence, earned about $10,000 a year and at the time of his death was sixty-five years of age and had an expectancy of 11.79 years) was not excessive, and was authorized by the evidence, the court did not err in overruling the motion for new trial.

Judgment affirmed on both bills of exceptions. Sutton J.,concurs.