In Lassiter v. Poss, 85 Ga. App. 785, 787-789 (1) (b) (70 SE2d 411) (1952), we held that a jury question existed over whether the teenage plaintiff who was injured while sitting on the fender of a moving vehicle has assumed the risk of injury from an automobile accident.Summary of this case from Teems v. Bates
DECIDED MARCH 14, 1952. REHEARING DENIED APRIL 1, 1952.
Damages; from Cobb Superior Court — Judge Brooke. May 19, 1951.
H. G. Vandiviere, Ben F. Smith, A. C. Latimer, Edward Savell, for plaintiff in error.
J. G. Roberts, Sam J. Welsch, contra.
1. ( a) Where reasonable minds might disagree as to whether the negligence charged constitutes lack of slight care as opposed to lack of ordinary care, this is a matter for the jury to determine.
( b) Where reasonable minds might disagree as to whether the alleged negligence of the plaintiff is of a character to preclude her recovery and to stand itself as the proximate cause of her injuries, this is a matter for the jury to determine.
2. Where a part of the testimony objected to on the ground that it is a conclusion is admissible, and the objection is not good as to the entire testimony, it is not error to overrule it. Testimony so admitted may be made the subject of any reasonable inference or argument on the part of counsel in his argument to the jury.
3. It was not error here to admit testimony as to the plaintiff's movements and exclamations caused by pain while sleeping at night, the testimony referring to observations of present suffering, and similar evidence on the subject having been admitted without objection.
4. Failure of the court to charge that the contentions as made in the pleadings are not evidence will not require a reversal where the court nowhere intimated that such pleadings could be used as evidence.
5. The charge of the court set out in the corresponding division of this opinion was not such as to mislead the jury to believe that a recovery would be warranted against the defendant named if his negligence did not constitute the proximate cause of the injuries received.
6. Since the plaintiff did not sue for special damages, lost earnings or impaired capacity to labor, the charge on the elements of damage to the effect that damages for pain and suffering were within the enlightened consciences of impartial jurors is without error.
7. The verdict was supported by the evidence, and the general grounds of the motion for a new trial are without merit.
DECIDED MARCH 14, 1952 — REHEARING DENIED APRIL 1, 1952.
Ann Elizabeth Poss, a minor, by her father as next friend, filed suit in the Superior Court of Cobb County against Narvel L. Lassiter Sr. and Harry B. Johnson, alleging substantially as follows: that the defendant Lassiter's son, Narvel L. Lassiter Jr., a minor, was on August 14, 1949, driving his father's automobile, which was used as a family-purpose car; that he requested the plaintiff and six other girls to go riding with him; that the Model-A Ford which he was driving was a two-passenger vehicle; that he placed three of the girls in the front seat with him, directed two others to sit on the right front fender, and directed the plaintiff and her sixteen-year-old sister to sit on the left front fender; that, in negotiating a hill while driving on a side road 22 feet in width, at a point where the visibility of oncoming vehicles from either direction is obscured (which fact was known to the drivers of both vehicles), the Ford driven by Lassiter Jr. met a pick-up truck driven by the defendant Johnson, both cars being at that time to the left of the center of the road, and the vehicles collided in such manner as to crush the plaintiff's leg between them and otherwise injure her. It is further alleged that both drivers knew the construction of this road at this point, but that the plaintiff did not know it, could not drive a car, was only fourteen years of age, knew nothing of the operation of motor vehicles, and had no control over either of the drivers. The petition alleges ordinary negligence as to Johnson in failing to use ordinary care to keep his truck under control, failing to bring it to a stop, failing to discover the approaching vehicle in time to stop, failing to steer the truck to the right of the center of the road, and failing to give warning of his approach. The defendant Lassiter is alleged to have been grossly negligent in permitting his son, known to him to be a young, inexperienced, and incompetent driver, to operate the vehicle, and, through his son, in not using slight care to drive to the right of the center line, in driving with the front seat over-crowded with passengers, in driving up a blind hill on the left side, failing to turn to the right in time to avoid the collision, failing to use slight care to avoid the injuries to the plaintiff, in so steering the vehicle as to cause them to collide, failing to give warning of his approach, and failing to give the approaching car equal rights upon the highway. General and special demurrers were filed to the petition and overruled. The plaintiff then amended by rephrasing certain specifications of negligence against Lassiter, and the defendant renewed his demurrers previously filed, which demurrers were also overruled. Exceptions pendente lite were preserved to these rulings.
On the trial of the case a verdict was returned against the defendant Lassiter and in favor of the defendant Johnson. The evidence, construed in its light most favorable to substantiate this verdict, was in substance: that young Lassiter had either invited or been requested by the group of girls, of which the plaintiff was the youngest, to ride in the car; that the plaintiff had come along because otherwise she would have been left alone in the house, and had sat on the fender beside her sister after the others were arranged in the positions described in the petition; that the road on which the collision occurred was a dirt road, with room for two vehicles to pass, which described a circle over and around a hill; that the driver was talking and laughing with the girls, and that their position in the car and on the fenders hampered his vision; that he was driving to the left of the center of the road; that before the collision the plaintiff had protested that the road was rough; that as the car and truck suddenly met each other both applied their brakes and Johnson pulled his truck as far to the right side of the road as was possible; and that the Lassiter car was partly on the left of the center of the road; that the left front fenders of the vehicles collided, crushing the plaintiff's left leg and inflicting certain other injuries.
From the adverse verdict the defendant W. L. Lassiter Sr. filed a motion for a new trial on the general grounds, which was later amended by adding seven special grounds.
1. The petition stated a cause of action against Lassiter, it appearing from the allegations that his son collided with an approaching vehicle in the daylight while rounding a hill which he knew to be dangerous, and while driving his automobile on the left side of the road and allowing his attention to be distracted by the occupants of the car with his visibility impaired by the group of youngsters on the front fenders. Certain of the acts alleged are negligent per se, and whether or not they constitute gross negligence so as to permit recovery by a guest, rather than ordinary negligence, is primarily a jury question. See Barbre v. Scott, 75 Ga. App. 524 ( 43 S.E.2d 760); Arrington v. Trammell, 83 Ga. App. 107 ( 62 S.E.2d 451); Nash v. Reed, 81 Ga. App. 473 (5) ( 59 S.E.2d 259). The special demurrers, directed to the allegations of negligence on the ground that they are conclusions of the pleaders, and that they do not constitute gross negligence, were also properly overruled for this reason, and the additional reason that the conclusions in such allegations are proper where, as here, the petition alleges facts upon which such conclusions are based.
(b) "One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, cannot hold another liable for damages from injuries thus occasioned." Southern Railway Co. v. Hogan, 131 Ga. 157 (1) ( 62 S.E. 64). However, in considering whether the risk is "obvious," the court must take into account not only the consequences of the act, but the fact as it appeared to the actor at the time, a fourteen-year-old girl with no driving experience, who either followed or was persuaded by her older companions to ride with others on the fender, there being no room inside the car. This has been held to be a jury question under very similar circumstances. See Atlantic Ice Coal Co. v. Folds, 47 Ga. App. 832 (4) ( 171 S.E. 581), a case in which a minor was killed while riding on a running board of a car. The case differs materially from that of Bugg v. Knowles, 33 Ga. App. 710, supra, in which a fourteen-year-old boy was killed while lying asleep across a railroad track. A person going to sleep on a railroad track, a known place of danger, is thereby assuming a risk, and this is a fact on which reasonable minds would not disagree; but reasonable minds might disagree as to whether the fender of an automobile is such an obvious place of danger under all circumstances that a person sitting thereon would be barred from recovery as a matter of law. And while the standard of ordinary care of a child of fourteen or fifteen is presumptively that of an adult, as held in that case, and while the provisions of Code § 105-204 relating to the due care in a child of tender years may not apply in the absence of special circumstances, nevertheless, the youth and inexperience of a child of this age are to be considered, and the matter ordinarily left as a question of fact for the jury rather than as a matter of law for the court. Paulk Fossil v. Lee, 31 Ga. App. 629 ( 121 S.E. 845). McIntyre v. Pope, 326 Pa. 172 ( 191 A. 607), and Wiese v. Polzer, 212 Wis. 337 ( 248 N.W. 113), cited by the plaintiff in error, do not control this principle of law, for the reason that those States therein followed the common-law principle of contributory negligence on the part of the plaintiff as a bar to recovery, whereas Georgia follows instead the comparative-negligence doctrine, which merely limits the amount of recovery. Code, § 105-603. The court did not err in overruling the demurrers to the petition.
2. In special ground 1 of the amended motion for a new trial, error is assigned on the admission in evidence of the following: testimony by the defendant Johnson, on the ground that it is a conclusion: "In the answer filed by Mr. Roberts for me, I admitted that the left front fender of the Ford car, which was driven by Narvell L. Lassiter Jr., and the left front part of my truck collided and jammed together and caused the injury to Ann Poss . . and according to this I further admit that, if each of the two vehicles had been driven to the right of the center line of the road, they could have passed without interference from each other. If he had driven to the right of the center of the road, the accident could have been avoided . . but, due to the type of hill, that cars get pretty well on each other before they see each other . . I admit that he was driving said Ford across to the left of the center of the road, and that he was not in good control of the said Ford. Then I alleged that he was negligent in failing to turn and steer the Ford to the right of the road at the time and place to avoid the collision. I admit he was negligent in failing to use the car to avoid the collision and injury at the time." The error is contended to be all the more prejudicial because of the ruling of the court complained of in special ground 3, to the effect that counsel for the plaintiff was permitted in argument to state the following: "This case has already been decided. All you have to do is to write the verdict. Mr. Lassiter has already admitted he was liable in this case."
As to the testimony of Johnson above, it is apparent that counsel was cross-examining him about the pleadings filed in his behalf in the case, and that he was stating as a fact that he had admitted certain allegations of the petition. However, considering his testimony as referring to the facts of the case rather than as to the contents of the pleadings, some of the statements are not subject to the objection that they were conclusions, and counsel should have specified the objectionable matter rather than objecting to it en bloc. Since some of the testimony objected to was not a conclusion, the trial court correctly overruled the objection based on this ground. Of course, Johnson, not being in privity with Lassiter, could not make any admissions such as to bind his codefendant, but the testimony was not objected to for this reason. As to the argument of counsel that Lassiter had admitted liability, there was considerable other evidence in the record of statements by this defendant, including the testimony of a police officer that he had said he "would straighten the thing out and go see Mr. Poss." Johnson also testified without objection that Lassiter had offered to have his car fixed for him, and had actually done so. Counsel may not argue on facts not in evidence, but he may, in argument, draw any reasonable inference or conclusion from facts proved. Mitchum v. State, 11 Ga. 615, 631. Counsel was therefore within his province in drawing from these facts an inference of the admission of liability and in arguing the same to the jury. These grounds are without merit.
3. Special ground 2 urges an objection to testimony of the plaintiff's sister, who slept with her at night, that "she keeps me awake sometimes at night when she turns over and wiggles in her sleep, she will wake up and wake me up at night, and it is usually her leg . . her left." Expressions descriptive of present pain, complained of by the injured party and expressive of natural reflexes which it might be impossible to show by other testimony, are admissible. Lathem v. Hartford Accident c. Co., 60 Ga. App. 523, 529 ( 3 S.E.2d 916); Liberty Mutual Insurance Co. v. Meeks, 81 Ga. App. 800 ( 60 S.E.2d 258). A distinction must be drawn between those expressions of pain which might constitute self-serving declarations, being in the nature of a mere narrative of past events, and those which are in the nature of res gestae — not as to the accident, it is true, but as to the nature and existence of present pain. The testimony regarding the movements and complaints of a young girl in her sleep would seem to fall into the latter category. In any event, however, testimony as to the plaintiff's pain and discomfort, by this witness and also by the girl's mother and her attending physician, was admitted without objection. This ground is without merit.
4. Complaint is made in special ground 4 that the court erred in failing to charge explicitly that pleadings are not evidence and have no probative value. In Shore v. Ferguson, 142 Ga. 657 (3) ( 83 S.E. 518), it is held as follows: "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 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." This ground is without merit.
5. Special grounds 5 and 7 complain of the court's charge on proximate cause, in that the court failed to charge that, before the defendant Lassiter could be held liable in damages, it must appear that his negligence, if it existed, was the proximate cause of the injury, although the court charged, as to Johnson, that "it would remain a question for the jury to determine whether such failure [of Johnson to exercise ordinary care] was the proximate cause of the injury." As to Lassiter, portions of the court's charge are as follows: "In order for the defendant Lassiter to be liable in this case, it must appear that Narvel Lassiter Jr. was guilty of gross negligence . . if the injuries were caused solely by the negligence, if any, of young Lassiter, and if Johnson was not guilty of any negligence, then the plaintiff would not be entitled to recover against Johnson . . if he [Lassiter] negligently causes injury to another, the negligence would be imputable to the parent. . . The fact that the injury could not have been sustained had only one of the acts of negligence occurred does not eliminate the other act as constituting a part of the proximate cause of the injury." The charge as a whole, which correctly stated the degree of care owing by Johnson as ordinary care, and that of Lassiter as slight care, and correctly stated the rule as to the doctrine of concurrent proximate cause, was not such as to confuse or mislead the jury into believing that Lassiter could be held liable if his son's negligence was not the proximate cause, or concurrent proximate cause, of the injuries received.
6. The plaintiff did not sue for special damages, lost earnings or impairment of capacity to labor. The petition alleged certain physical injuries, and that "all of said injuries are serious, painful, and permanent, and they caused plaintiff excruciating pain and will continue to cause her pain and suffering." The evidence supported these allegations. In view of this, the court's charge, excepted to in ground 6, that damages recoverable on account of personal injuries are damages on account of pain and suffering proximately resulting from the injuries, and that the rule for the ascertainment thereof is the enlightened consciences of fair and impartial jurors, is not error for any reason assigned.
The verdict was supported by the evidence, and, there being no error of law sufficient to require a reversal, the trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.