Opinion
34877.
DECIDED FEBRUARY 13, 1954.
Damages. Before Judge Thomas. Wayne Superior Court. August 1, 1953.
C. L. Cowart, W. Glenn Thomas, Joe Thomas, for plaintiff in error.
Ronald F. Adams, Ralph L. Dawson, contra.
The trial court did not err in denying the amended motion for a new trial.
DECIDED FEBRUARY 13, 1954.
J. W. Williams, a minor, by and through his father as next friend, sued for damages Forest C. Harper, trading as Harper Hardware Supply Company. The petition as amended in substance alleged: that on the night of December 24, 1951, the plaintiff and another were riding on the right front seat as guests in an automobile owned by one Earl Cribbs and operated by him, in a southeasterly direction along Cherry Street in the city of Jesup, Georgia; that the plaintiff was seated on the extreme right side of the front seat with his right elbow resting on the door; that the automobile was traveling approximately 10 miles per hour at a point between Macon and West Broad Streets; that the defendant is the owner of a certain two-ton International truck approximately 27 feet long, which at the time and place aforesaid had been parked by agents or employees of the defendant, unknown to the plaintiff, at the southwest curb of Cherry Street in such a manner that the rear end of the truck protruded into the path of automobile traffic traveling along Cherry Street in a southeasterly direction; that the rear end of said truck crashed against the right elbow of the plaintiff, shattering the bones and mangling the entire right arm of the plaintiff so that the arm is utterly and permanently useless.
It was alleged that the defendant was negligent in parking the truck in violation of a city ordinance of Jesup, as follows: "From and after September 17, 1935, it will be unlawful to park `long trucks' on the following streets: Cherry Street from Macon to alley between East Broad and Brunswick Streets; on West Broad from Walnut to alley between Cherry and Plum Streets; on East Broad from alley on either side of Cherry Street"; and that the defendant was negligent also in the following particulars: "By parking said truck on said Cherry Street in such a manner as to leave the rear end of said truck protruding into the line of traffic without attaching warning lights or signals of any kind to said truck; by parking said truck so that the rear end protruded into the line of traffic without leaving an attendant to warn petitioner of the impending danger"; and "by failing to remove said truck from the line of traffic after he discovered, or by the exercise of ordinary care and diligence should have discovered, that the rear end thereof was parked in the path of vehicular traffic"; and in violating an ordinance of the City of Jesup passed August 17, 1948, which provides that "It shall be unlawful to park a truck or other vehicle having an overall length of over 18 feet on Cherry Street; on West Broad Street, East Broad Street or Macon Street, between Walnut and Plum Street." All of said acts of negligence were alleged to have been the proximate cause of the plaintiff's injuries.
The defendant answered, admitting the formal allegations of the petition and that he owned the truck described, but denying the other allegations and denying that the injury occurred in the manner alleged by the plaintiff, or that the defendant's negligence contributed to the plaintiff's injury, and further pleading that the damages sustained by the plaintiff were the result of the negligence of the plaintiff and the driver of the automobile in which he was riding. The answer further affirmatively alleged that the plaintiff's elbow, instead of resting on the right front door of the automobile in which he was riding, as alleged in the petition, was extended out of the right front window. The answer further pleaded that the plaintiff was barred from a recovery from the defendant because the plaintiff had received full and complete satisfaction for his injuries by reason of having compromised and settled his claim against Earl Cribbs, the driver of the automobile in which he was riding at the time he was injured, the plaintiff by and through a guardian having accepted $1,200 in full and complete settlement of the said claim.
The jury found for the plaintiff $10,000, less the amount received from the owner of the automobile in which the plaintiff was riding. The defendant's amended motion for a new trial was denied and he excepted.
1. The contention that a verdict for the defendant was demanded is without merit. The defendant admitted that the truck was parked by one of his employees. The fact that it was negligently parked contrary to instructions would not exonerate the defendant. The evidence does not show that as a matter of law the plaintiff's injuries were due solely to his own negligence. He did state that there was nothing to prevent him from seeing the truck if he had been looking, but he also stated that he was not looking at the truck at the time his arm was hit. One riding under such circumstances as the plaintiff was riding is not bound to exercise the same care as the driver of the automobile, and it was a jury question whether the plaintiff was guilty of negligence under the circumstances and also whether, if he was, it was less than the negligence of the defendant.
2. It was not error to permit a witness to testify: "I can say that ever since I have been driving, it has been a custom where three ride in one seat, the one riding on the right rides with his elbow in the window, and I have seen other people do the same thing" — complained of in special ground 1 — as against the objections therein urged. The custom testified to is not so obviously dangerous as to preclude it from being considered on the question of whether the plaintiff was negligent. Furthermore, the mere riding with one's elbow out of an automobile window is not negligence. Other circumstances could make it so, and we do not think the evidence of the custom could have been harmful to the defendant. There was no objection that the evidence of the custom did not come up to the rules rendering such evidence admissible.
3. It was not error to admit the city ordinance in evidence. The charter of Jesup provides that "The vote upon the passage of all ordinances and resolutions shall be upon a call for `ayes' and `nays', and the votes on the passage of all ordinances shall be entered upon the minutes of the meeting of the council, in which such vote was taken." The minutes of the city council showed what officials were present and that the ordinance was unanimously passed. The minutes do not show that the vote was not taken by ayes and nays and, in the absence of anything showing the contrary, it will be presumed that the law was complied with.
4. There is no merit in the third special ground of the amended motion. The defendant pleaded the release of a joint tortfeasor. There was no evidence of a release. The only evidence of a settlement was that the Ordinary of Wayne County granted a petition of the injured party's guardian to compromise the claim against the joint tortfeasor upon her executing a covenant with Earl Cribbs, Jr. and Sr., and State Farm Mutual Automobile Insurance Company to desist and refrain from instituting or asserting against them any claim or demand, etc.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.