Opinion
36332, 36333.
DECIDED NOVEMBER 19, 1956. REHEARING DENIED DECEMBER 4, 1956.
Tort; automobile and motorcycle collision. Before Judge Hicks. Floyd Superior Court. June 8, 1956.
Maddox Maddox, for plaintiff in error.
Matthews, Maddox, Walton Smith, contra.
1. Where the general grounds of a motion for a new trial are not argued or generally insisted upon in the brief of counsel for the plaintiff in error and are not argued orally before this court, such grounds are to be treated as abandoned. Code § 6-1308; Housing Authority of Savannah v. Savannah Iron Wire Works, 91 Ga. App. 881 ( 87 S.E.2d 671).
2-4, 6-8. There is no merit in special grounds 1, 2, 3, 5, 6, 7, and 8 for the reasons stated in the opinion.
5. The expected profits of a commercial business are too uncertain, speculative and remote to permit a recovery for their loss, and where an issue as to such profits is raised by the evidence, the trial court does not err in instructing the jury that damages which are too remote may not be recovered.
9. Where, in the trial of an action for damages growing out of the alleged negligence of the defendant, the plaintiff alleges his own freedom from fault and the defendant's negligence, and the defendant pleads its freedom from fault, and alleges negligence on the part of the plaintiff, and there is evidence authorizing a finding that neither party was at fault, it is not error to instruct the jury upon the law applicable to accidental injury.
10. A ground of a motion for new trial which is expressly abandoned by counsel presents no question for determination by this court. Code § 6-1308. Special ground 10 comes within this rule.
11. If a party obtains knowledge during the progress of a trial of acts of jurors, or acts affecting them, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered as having waived his objections.
DECIDED NOVEMBER 19, 1956 — REHEARING DENIED DECEMBER 4, 1956.
Clark H. Everett, in his own behalf, and as next friend of his minor son, Parnick H. Everett, brought two actions for damages against Mary G. Clegg. Except for the difference in the elements of damage sought in the two cases, the material allegations of the two petitions are identical and substantially as follows: (3) At the times hereinafter mentioned, Broad Street, in the City of Rome, Georgia, was, and still is, a public thoroughfare running in a general northerly and southerly direction, and by Schedule II of the Traffic Rules and Regulations of the City of Rome, in effect at the time complained of, was designated as a "through street" from the Central of Georgia Railway to Ross Street. Seventh Avenue was, and still is, a public thoroughfare running in a general easterly and westerly direction and intersects Broad Street at a point between the Central of Georgia Railway and Ross Street. The westerly extension of Seventh Avenue is not in juxtaposition with the easterly part of that avenue, but is to the south of the easterly intersection. (4) On the date in question, there was in full force and effect an ordinance of the City of Rome, providing in part:
"Section 64. Through streets designated. Those streets and parts of streets described in Schedule II attached hereto and made a part hereof are hereby declared to be through streets for the purpose of this section.
"Section 65. Authority to erect stop signs. Whenever any ordinance of this city designates and describes a through street, it shall be the duty of the city traffic engineer to place and maintain a stop sign on each and every street intersecting that portion thereof described and designated as such by any ordinance of this city.
"Section 66. Intersections where stop required. The city traffic engineer is hereby authorized to determine and designate intersections where particular hazards exist upon other than through streets and to determine whether vehicles shall stop at one or more entrances to any such stop intersection, and shall erect a stop sign at every place where a stop is required.
"Section 67. Signs to bear the word `Stop.' Every sign erected pursuant to this article shall bear the word `Stop' in letters not less than six inches in height, and such sign at night time being rendered luminous by steady or flashing internal illumination, or by a fixed flood light projected on the face of the sign, or by efficient reflecting elements on the face of the sign. Every stop sign shall be located as near as practicable at the nearest line of the cross-walk on the near side of the intersection, or, if none, at the nearest line of the roadway.
"Section 68. Vehicles and street cars to stop at stop signs. When stop signs are erected as herein provided at or near the entrance of any intersection, every driver of a vehicle and every motorman of a bus shall stop such vehicle or bus at such sign or at a clearly marked stop line before entering the intersection except when directed to proceed by a police officer or traffic-control signal."
In compliance with the authority contained in these sections of the ordinance the City of Rome had, at the time complained of, erected a stop sign at the easterly intersection of Seventh Avenue and Broad Street facing toward Seventh Avenue so that traffic approaching Broad Street on Seventh Avenue was required to come to a stop before entering the intersection. (5) At 7:20 p. m. on November 2, 1955, Parnick H. Everett was driving a 1955 Harley-Davidson motorcycle in a northerly direction along Broad Street in the City of Rome. Just prior to the time in question, he stopped at Sixth Avenue in obedience to a traffic-control signal exhibiting a red light. When the traffic-control signal changed to a green light, he started his motorcycle and was proceeding in the right-hand traffic lane of Broad Street at a speed of 20 miles per hour. (6) At the time in question, it was dark but clear and dry and the headlight of the motorcycle was burning on the dim position. Automobiles were parked along the right-hand curb of Broad Street. As he reached the intersection of Broad and Seventh Avenue, a 1953 Plymouth sedan, owned and operated by the defendant, was proceeding in a westerly direction on Seventh Avenue, and the defendant negligently failed to bring her automobile to a stop as she approached the intersection as required by the traffic ordinance quoted above, but, on the contrary, negligently drove past the stop sign and into Broad Street. (7) Parnick H. Everett could not see the automobile coming from the side street until it was about 17 feet away. There was not then sufficient time for him to stop before striking the automobile. He swerved his motorcycle to the right in an attempt to avoid the automobile, but it was impossible to do so, and he struck the car at approximately the left rear door. The force of the impact knocked him over the automobile and onto the pavement. (8) The defendant was guilty of negligence per se in failing to stop her automobile as required by the ordinance of the City of Rome. She was further guilty of negligence in failing to keep a lookout ahead in the direction in which she was traveling and in failing to keep her automobile under control so that she could stop in time to avoid a collision with traffic on the through street. Parnick H. Everett sustained enumerated personal injuries including pain and suffering, and the plaintiff seeks to recover for such injuries the sum of $20,000 for and in behalf of his son. The plaintiff seeks to recover damages in his own behalf for medical expenses incurred for the care of his son, for damages to his motorcycle, and for the loss of his son's services, totaling $5,000.
Demurrers were filed to the petitions but no action was taken thereon by the trial court. In her answer to the action brought in behalf of the minor son, the defendant denied the allegations of the petition and alleged that the City of Rome, at the time complained of, had not, in compliance with the authority contained in the sections of the ordinance referred to in the petition, erected a stop sign at the easterly intersection of Seventh Avenue and Broad Street facing toward Seventh Avenue so that traffic approaching Broad Street on Seventh Avenue was required to come to a stop before entering the intersection. She alleged further that she was not negligent; that the sole proximate cause of the alleged injuries and damages was Parnick H. Everett's failure to exercise ordinary care for his own safety; that he, in the exercise of ordinary care, could have discovered and avoided the consequences of any alleged negligence on the part of the defendant, and that his negligence at the time complained of was equal to, or greater than, the defendant's alleged negligence. In her answer to the action brought by the father, in addition to the allegations contained in her answer to the action brought in behalf of the minor son, and by way of cross-action, the defendant alleged that, at the time complained of, the motorcycle was furnished by the plaintiff to his son for his own convenience, comfort and pleasure as a member of the plaintiff's family; that the motorcycle was then being used by the son for family purposes; that he was, at the time complained of, operating the motorcycle at a speed of 35 miles per hour and did not have it under sufficient control to enable him to stop or turn it to one side in order to avoid a collision with the defendant's vehicle when he saw it; that, at such time and place, Parnick H. Everett was operating the motorcycle without keeping a lookout ahead and failed to see the defendant's vehicle in his path; that the plaintiff was guilty of negligence per se in that his son and agent: (a) Drove the motorcycle on the street at a speed greater than was reasonable and prudent under the conditions and having regard to the actual potential hazards then existing in violation of Code (Ann. Supp.) § 68-1626 (a). (b) Failed to control the speed of the motorcycle so as to avoid colliding with the defendant's automobile in compliance with the legal requirements and the duty of persons to use due care, in violation of Code (Ann. Supp.) § 68-1626 (a). (c) Failed to drive the motorcycle at an appropriately reduced speed in approaching the intersection when special hazards existed with regard to other traffic, in violation of Code (Ann. Supp.) § 68-1626 (c). (d) Operated the motorcycle in excess of 25 miles per hour in violation of a valid and existing ordinance of the City of Rome establishing that speed limit at that point; and the defendant seeks to recover damages to her automobile in the sum of $200.
The two actions were tried together as one case, and the jury returned verdicts in both cases in favor of the defendant, but refused to award her any special damages. The plaintiff's identical motions for new trial, based upon the usual general grounds and 11 special grounds, were denied, and error is assigned upon those judgments.
1. Headnotes 1 and 10 require no elaboration.
2. Where in an action for negligence the pleadings and evidence present a multiplicity of circumstances under which the plaintiff would be entitled to recover, and a multiplicity of circumstances under which the plaintiff would not be entitled to recover, and the trial court in charging the jury enumerates the circumstances under which the plaintiff would and would not be entitled to recover, the fact that the number of circumstances enumerated under which the plaintiff would not be entitled to recover is greater than the number of circumstances enumerated under which he would be entitled to recover, constitutes no ground for the grant of a new trial where it does not appear that the trial court in charging the law covering such circumstances gave any erroneous statement of the law; and the trial court does not err in denying a special ground of a motion for a new trial based upon such contention. There is no merit in special ground 1.
3. In special ground 2, error is assigned upon the following excerpt from the trial court's charge to the jury: "I charge you that the plaintiff in either of the cases is not entitled to have and receive a verdict at your hands unless it appears that each of them was injured and damaged in the manner and form contended for by him in his suit, and before plaintiff would be able to have and receive compensation for the alleged injuries, it must appear from the consideration of the evidence on the trial of the case that the defendant failed to exercise ordinary care and diligence and that by such failure to exercise ordinary care and diligence plaintiff was injured; that is, the plaintiff in each case, and to the end that you might knowingly understand the issues of facts presented by the parties to this case the court has heretofore submitted to you a synopsis of the contentions of the plaintiff on the one hand in each case, and the defendant on the other." The vice attributed to this excerpt is that the charge is an erroneous statement of law and tends to instruct the jury that the plaintiff, Clark H. Everett, must have himself been injured, and there was no allegation that he himself was injured. The excerpt states a correct principle of law and even the most cursory consideration of it shows that the court instructed the jury that the parties must have been injured and damaged "in the manner and form contended for in his suit." Under the pleadings in the case brought by Mr. Everett in his own behalf, it is alleged that he sustained enumerated damages as the result of medical expenses for his son, loss of his son's services, and damage to his motorcycle. The word "injuries" has no such circumscribed connotation either in law or in its ordinary use as to restrict its meaning to personal injuries alone. There is no merit in this ground of the motion for new trial.
4. In special grounds 3 and 5, the plaintiff complains that the trial court injected into the case extraneous issues, not raised by the pleadings or evidence, by instructing the jury that one who places himself in peril by creating an emergency must exercise ordinary care for his own safety, and by instructing the jury that one having two courses of action, one perilous and the other safe, must choose the safe course. "To warrant the court in charging the jury on a given topic, . . . it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts." Brown v. Matthews, 79 Ga. 1 ( 4 S.E. 13).
From the evidence of the speed of the motorcycle on which the younger Everett was riding, the width of the street, the obscured view of the street from which the defendant's automobile emerged, the younger Everett's action in swerving the motorcycle first to the left and then to the right, the jury would have been authorized to find that he created an emergency and of the two open to him, chose the perilous rather than the safe course, and the trial court did not err in charging upon these two issues.
5. "The general rule is that the expected profits of a commercial business are too uncertain, speculative and remote to permit a recovery for their loss. Cooper v. National Fertilizer Co., 132 Ga. 529 ( 64 S.E. 650); Consolidated Phosphate Co. v. Sturdivant Co., 20 Ga. App. 474 ( 92 S.E. 155), and cit." Palmer v. Atlantic Ice Coal Corp., 178 Ga. 405 (2) ( 173 S.E. 424, 92 A.L.R. 176). There was evidence of the plaintiff's loss of profits from a chicken broiler business and cotton picking. There was also evidence of the younger Everett's expected earnings from a job for which he had applied only. The issue of contingent damages was raised by the evidence and the trial court did not err in charging the provisions of Code § 105-2008. There is no merit in special ground 4.
6. Both in everyday parlance and in legal phraseology, the word "mischief" is synonymous with injury, and it is clear that in the context in which it was used in the charge, "mischief" was intended by the court to mean "damage," "harm," "hurt," or "injury," and we believe could not have been otherwise understood by the jury. Consequently, the trial court did not err, as complained of in special ground 6, in including the following instruction in its charge to the jury: "I charge you that liability of the defendant is limited to those consequences which she should reasonably have anticipated as the natural and probable results of her own act or omission. The law does not require one to anticipate or foresee unusual or possible occurrences. It is probable danger that one must exercise ordinary care and prudence to prevent. Generally speaking, no one is bound to guard against or take measures to avert that which under the circumstances a reasonably prudent person could not anticipate as likely to happen. Mischief, which could by no reasonable person have been anticipated, cannot be taken into account as a basis upon which to predicate a wrong." See in this connection Pfeifer v. Yellow Cab Co., 88 Ga. App. 221, 226 ( 76 S.E.2d 225).
7. While the plaintiff does not charge the defendant with the violation of any State statutes and the evidence shows no such violation, the plaintiff was not harmed by the following excerpt from the trial court's instructions to the jury: "I charge you, gentlemen of the jury, that if you should believe from the evidence that the defendant was guilty of a violation of any one or more of the State's statutes about which I have called your attention as contended for by plaintiff, and that such violation was the proximate cause of plaintiff's injury, if he was injured in the manner alleged, the plaintiff would be entitled to a verdict at your hands provided you believe that the plaintiff was in the exercise of ordinary care and diligence. The rules of law given in charge concerning the law applicable to negligence per se would not apply unless the jury should determine from the evidence that the defendant had violated the terms of one or more of the statutes or municipal ordinances referred to." Viewed in the light of the charge as a whole, this instruction is not subject to the construction placed upon it by counsel for the plaintiff, that the jury must find that the defendant violated a State statute in order for the plaintiff to recover. At various other points in its charge, the court instructed the jury that the plaintiff could recover if the defendant was negligent in failing to exercise ordinary care even though no law violation was involved. There is no merit in special ground 7.
8. It is so well established as to be axiomatic that a plaintiff, in an action founded on negligence, is confined to proof of the acts alleged in his petition ( Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695, 50 S.E. 974; Southern Ry. Co. v. Ray, 155 Ga. 579, 118 S.E. 53) and a recovery can only be permitted on proof of the grounds specified in the petition and not on any other acts of negligence ( Georgia Brewing Assn. v. Henderson, 117 Ga. 480, 43 S.E. 698; Southern Ry. Co. v. Winn, 25 Ga. App. 438, 103 S.E. 733); but, although several acts of negligence are alleged in the complaint, proof of all such acts is not required and a recovery will be sustained upon proof of any one or more of such acts ( Henry v. Ashley-Price Lumber Co., 18 Ga. App. 493, 89 S.E. 601; Cavanaugh v. Biggin, 9 Ga. App. 466, 71 S.E. 779). Viewed in the light of the charge as a whole, the following excerpt from the trial court's instructions to the jury states a correct principle of law, does not violate any of the foregoing principles of law, and does not have the effect of instructing the jury that before the plaintiff could recover, every act of negligence charged in the petition had to be proved: "The plaintiff is entitled to recover if he proves to your satisfaction under the rules of law given you in charge that the defendant was negligent as alleged in his petition, and that he was injured and damaged as a proximate result thereof." There is no merit in special ground 8.
9. There is no merit in special ground 9 in which the plaintiff contends that the trial court erred in instructing the jury on the theory of accident as such an issue was not raised by the pleadings or evidence in the trial. "An `accident' in its strict sense implies the absence of negligence, for which no one would be liable. Stansfield v. Gardner, 56 Ga. App. 634, 645 ( 193 S.E. 375). `A charge that if the injury resulted from an accident, and neither party was at fault, there can be no recovery, is in the nature of an elaboration or additional statement of the proposition that the defendant is not liable if it is without fault.' Savannah Electric Co. v. Jackson, 132 Ga. 559, 563 ( 64 S.E. 680). In the petition, it is alleged that the plaintiffs were not negligent, and that the defendant was. The defendant denied these allegations and pleaded its own exercise of ordinary care. There was evidence to sustain a finding that neither party was at fault, and therefore the charge on accident was not error requiring the grant of a new trial. Holliday v. City of Athens, 10 Ga. App. 709 (5, 6) ( 74 S.E. 67); Brown v. Mayor c. of Athens, 47 Ga. App. 820 (3) ( 171 S.E. 730); Richter v. Atlantic Co., 65 Ga. App. 605 (4), 608 ( 16 S.E.2d 259), and citations." Baldwin v. Georgia Automatic Gas Co., 85 Ga. App. 767, 776 ( 70 S.E.2d 108).
11. "As a general rule, if a party obtains knowledge during the progress of a trial of acts of jurors, or acts affecting them, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered as having waived his objections." 89 C. J. S. 134, § 483; Sizer c. Co. v. G. T. Melton Sons, 129 Ga. 143 ( 58 S.E. 1055); Bass v. Winfry, 20 Ga. 631; Towns v. Rome Ry. Light Co., 19 Ga. App. 457 ( 91 S.E. 790); Deen v. Wheeler, 7 Ga. App. 507 ( 67 S.E. 212). In special ground 11, error is assigned upon the fact that an acting bailiff of the court, at the request of the jury during their deliberations, furnished the jury with a booklet containing all the traffic rules and regulations of the City of Rome. From the affidavit of the acting bailiff, which is attached to and made a part of this special ground of the motion for new trial, it appears that counsel for the respective parties were informed by the acting bailiff of his action in furnishing the book to the jury prior to the time the jury had reached a verdict and it is not made to appear in this ground that counsel for the plaintiff made any complaint or took any action to remedy this misconduct. The plaintiff, consequently, is deemed to have waived this irregularity in the trial of the case, and there is no merit in special ground 11.
The trial court did not err in denying the motions for new trial for any reason assigned.
Judgments affirmed. Gardner, P. J., and Townsend, J., concur.