Opinion
32852, 32853.
DECIDED JULY 7, 1950.
Damages; from Habersham Superior Court — Judge Frankum. October 17, 1949.
William P. Whelchel, J.B.G. Logan, Kimzey, Griggs Crawford, for plaintiff in error.
Wheeler, Robinson Thurmond, Irwin R. Kimzey, F. Jack Adams, contra.
No reversible error being shown by the assignments of error on the charge to the jury, which, as a whole, was full and fair to both parties, this court will not reverse, on the general grounds, a verdict supported by competent evidence.
DECIDED JULY 7, 1950.
This case arose out of a collision between two automobiles. Mrs. Mary Hinson McKiernan, whom we shall call the plaintiff, brought suit in Habersham Superior Court against Mrs. Naomi Grant, whom we shall call the defendant, for total damages of $5,000, $1,500 for damage to her automobile, and $3,500 for physical injuries and pain and suffering.
The petition alleged that as the plaintiff, on January 6, 1949, was driving her automobile on U.S. Highway No. 23, in a northerly direction, about one mile south of Gainesville, Ga., the defendant, who was driving in the opposite direction, suddenly and without warning turned the automobile she was driving to the left, crossed the center line of the highway and struck the plaintiff's automobile with such force that both automobiles were knocked off the road and onto the shoulder of the plaintiff's right-hand side of the road. As statutory negligence the plaintiff alleged the defendant's failure to turn her automobile to the right of the center of the highway when meeting the plaintiff's automobile, and her failure to give the "left-turn" signal. She also alleged common-law negligence of the defendant in failing to keep a lookout ahead, and in failing to grant her the right of way in that the impact occurred on the plaintiff's right-hand side of the highway. The petition set forth particulars of the damage to the plaintiff's automobile, and the extent, nature and result of her personal injuries.
The defendant filed her plea and answer in the nature of a cross-action and alleged the negligence of the plaintiff as the proximate cause of the collision. She admitted that the highway south of the point of the collision is practically straight for a distance of from six hundred to seven hundred feet, but that there is a hill, the top of which is from two hundred and ninety to three hundred feet south of the point of the collision, and that the top of this hill is the first point at which an automobile approaching from the south comes into view of one driving in a southerly direction at the place of the collision. She alleged the following statutory negligence of the plaintiff: Driving at a speed of from sixty to sixty-five miles an hour, and further alleged, "The collision occurred in a restricted school speed zone. The speed limit at this point was reduced to a rate of thirty-five miles per hour, and said restricted school speed zone was called to the attention of plaintiff and the general public by signs conspicuously posted on the highway some three hundred feet and six hundred feet south of the point of collision." She further alleged that after giving the "left-turn" signal, she slowed down her automobile and was in the act of turning across the highway into a by-road when she saw the plaintiff's automobile come over the top of the hill at an excessive speed and in the emergency thus created by the plaintiff she did not attempt to complete the turn, but stopped her automobile in a position protruding slightly across the center line of the highway, endeavoring thus to avoid being struck by the plaintiff's automobile.
She further alleged in paragraph 24: "Adjacent to the point of collision in said highway, there was a filling station on the west or plaintiff's left side of said highway, and that portion of the southbound traffic lane of said highway which remained unobstructed, the paved shoulder of the highway and concrete apron of said filling station afforded plaintiff with at least fifty feet of paved area, unobstructed and clear of traffic in which to turn to her left and pass the automobile operated by defendant, had she been driving her automobile at a lawful rate of speed and had had said automobile under control." In paragraph 25, she alleged: "Adjacent to the point of collision in said highway, there was a filling station on the east or plaintiff's right side of said highway, the shoulder of said highway which remained unobstructed, the surface shoulder of the highway and apron of said filling station having an all-weather surface, and that portion of the northbound traffic lane of said highway which remained unobstructed, the surface shoulder of the highway and surfaced apron of said filling station afforded plaintiff with from fifteen to twenty feet of surfaced area, unobstructed and clear of traffic in which to turn to her right and pass the automobile operated by defendant, had she been driving her automobile at a lawful rate of speed and had said automobile under control."
Briefly summarized she alleged the following negligence of the plaintiff: Excessive rate of speed of from sixty to sixty-five miles an hour; driving in a restricted speed zone at such speed and in excess of thirty-five miles an hour; failure to maintain a proper lookout; failure to have her automobile under control; failure to turn either to her right or to her left as specified in paragraphs 24 and 25 quoted above; in failing to reduce the speed of her automobile under the circumstances alleged; in failing to sound her horn.
She further specified the damage done to her automobile by the impact of the plaintiff's car and the nature and extent of her personal injuries and prayed for judgment of $25,000 against the plaintiff.
The case was tried before a jury which returned a verdict of $1,000 for the plaintiff. The defendant filed her motion for new trial on the general grounds and amended by adding two special grounds assigning error on the charge. This motion was overruled and the plaintiff excepted and assigns this judgment as error in this court. The plaintiff in the court below excepts by cross-bill to a ruling of the court during the course of the trial, the particulars of which are given in the opinion.
1. The cross-bill of exceptions recites that counsel for Mrs. McKiernan during the course of the trial "made an oral motion in the nature of a general demurrer to strike certain paragraphs contained in the cross-action filed . . by Mrs. Grant" the ground being that these paragraphs alleged negligence per se of the plaintiff in driving faster than the speed limit set by the Department of Public Safety, the contention being that the act of the legislature purporting to give the said Department authority to repeal provisions of general State law establishing lawful speed of automobiles on the highways was in contravention of article 3, section 1, paragraph 1 of the State Constitution. It is not clear from the record at just what stage of the trial this motion was made and overruled.
Under the authority of West v. Frick Co., 183 Ga. 182 ( 187 S.E. 868), and Hazlehurst v. Southern Fruit Distributors, 46 Ga. App. 453 (1) ( 167 S.E. 898), the question of the constitutionality of the act in question was not properly before the trial court in that it was not raised at the earliest opportunity at which it could have been raised, and hence is not an issue in this court. In the Hazlehurst case it is stated; "It is a general rule that a constitutional question should be raised in a case at the earliest opportunity at which it can be appropriately raised, or it will be considered as having been waived."
The request of counsel for the plaintiff in error on the cross-bill to transfer the bill and cross-bill of exceptions to the Supreme Court is denied.
2. The first special ground of the motion for new trial complains of the failure of the trial judge to charge that the act of the plaintiff in driving at a speed greater than that fixed by the Department of Public Safety in a restricted school speed zone as alleged in the cross-action was negligence per se, and that this was particular error in that "after the trial jurors had retired to their chambers for the purpose of, and during the course of their deliberations, the foreman of the jury called the judge to the door of the jury room and stated to him that he had not charged the jury concerning the thirty-five mile per hour speed limit alleged to have been in force at the time and place of the collision, and asked the judge whether or not the jury should consider such thirty-five mile per hour speed limit. In reply to this query, the court stated to such person, in the presence of the trial jurors, that he would let his charge to the jury stand as previously given without any further instructions."
In Platt v. Southern Photo Material Co., 4 Ga. App. 159, 164 ( 60 S.E. 1068), Judge Powell, speaking for the court said: "The plaintiff who has established the fact that a defendant has been guilty of doing what he ought not to have done, or of not doing what he ought to have done, has something further to do, in order to show a cause of action in his behalf; he must show not only that he has directly and proximately suffered injury therefrom, but also that he is so related to the duty and the neglect thereof that he has the right to complain. Therefore, although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to him; and when the lawmaking power has created a particular obligation or has inhibited certain conduct, before a plaintiff can invoke that law in his behalf it must appear (to borrow an expression from the grammarians) that he, either in his own right or as a member of a class, is the indirect object of the legislative action. The statute being the direct object, he must occupy the relation expressed by the dative case, while the statute stands in the accusative." In that case the plaintiff alleged negligence per se in the violation of a child-labor statute. The petition was held bad as to such negligence, because the plaintiff was not in the class for the benefit of which the statute was intended, being over the age-limit contemplated by the terms of the statute, but the petition was held good on the allegations of common-law negligence.
The act of the legislature (Ga. L. 1939, p. 295, sec. 2 (c)) giving authority to the Department of Public Safety to fix "special speed restrictions" in particular zones is codified as Code § 68-301 (c) (Ann. Supp.) While it is apparent that the general purpose of the act as a whole is to protect motorists one from another as well as to protect other users of the highways from motorists, the purpose of the subsection in question, as applied to school zones, is obviously not that. To borrow from the above quotation, the defendant was not in the dative case as to one exceeding the speed limit set in a special school zone, but children and others on their way to and from school would be. Hence it was not error to fail to charge that, if the plaintiff was running her automobile in excess of 35 miles an hour in such a school zone, it was negligence per se as to the defendant.
3. The second special ground of the motion for new trial complains of the failure to charge the law relating to emergencies, the defendant having pleaded emergency, and, as contended by counsel, having substantiated such pleading with evidence.
During the trial the plaintiff testified: "Mrs. Grant's car was only a few feet away when she turned across the road. . . I saw her coming but I didn't know she was going to turn. I did not see her hold out any hand or do anything to indicate that she had any intention of turning to the left. When I first saw her she was on the right hand side of the road, that is her right hand side. I was driving . . on the right hand side coming from Atlanta toward Gainesville. . I was in that, the right lane of traffic. I got close to her and all of a sudden she cut into me."
The defendant testified: "On the afternoon of this accident before I came to the intersection, I gave a timely signal and I slowed down. I saw there was nothing coming at the back or in the front and I started to make my left turn. I got across the main line with my fore wheels and I saw this car coming at a rapid speed. I knew I wouldn't have time to make it across, and I swerved around to the right and put my foot on the brake and clutch and came to a stop in the car across the line, about the fore wheels or front wheels. I was not headed toward Buford. I was going across; I was making the intersection. I had started toward Buford and Atlanta. I came to the intersection to get on my side and when I got across there that car came at a rapid speed."
Both parties introduced evidence in support of their allegations, but the above-quoted statements are the sharpest in the record in support of the contentions of each party.
We are not certain that emergency was involved under the evidence in the case, but as it was pleaded by the defendant and evidence introduced in support of her pleading, it may have been error not to charge the principle that one acting in an emergency created by the negligence of another is not held to the same degree of accountability for his actions as would one not acting in such emergency.
However, under the evidence in this case, and under the peculiar pleadings by the defendant as to what the plaintiff should have done when she saw the defendant's car stopped in front of her in the road, it would have been as harmful to the defendant as to the plaintiff to have given such principle in charge. We hold, therefore, that this ground shows no harmful error.
4. As to the general grounds, the jury resolved the evidence in favor of the plaintiff, and no reversible error being shown in the charge, which was, as a whole, full and fair, this court will not disturb the verdict where there is any competent evidence to support it.
Judgment affirmed on the main bill of exceptions. Cross-bill dismissed. MacIntyre, P. J., and Townsend, J., concur.