Opinion
36010.
DECIDED FEBRUARY 10, 1956.
Damages. Before Judge Edwards. Elbert Superior Court. October 13, 1955.
J. T. Sisk, for plaintiff in error.
Compton O. Baker, Robert M. Heard, contra.
The trial court did not err in denying the motion for a new trial.
DECIDED FEBRUARY 10, 1956.
Leland R. Casey filed an action, in Elbert Superior Court. against E. J. Pulliam for damages arising out of a collision between the plaintiff's automobile and a truck driven by the defendant. The petition alleged in substance: that on August 1, 1952, at about 5:15 in the afternoon, the plaintiff was driving his automobile north on Georgia Highway No. 17; that his wife and daughter were passengers in the automobile; that when the plaintiff's automobile reached a point on the highway about two and one-half miles south of Bowman, Georgia, a truck driven by the defendant was proceeding south on the highway and collided with the plaintiff's automobile with great force; that in approaching the point of collision the plaintiff was driving his automobile approximately 50 miles per hour and was to the right of the center of the road; that the highway was a black-top paved surface and had two lanes of traffic; that at the point of the collision there was a dirt road which left the highway and ran in an easterly direction; that as the plaintiff approached the point of the collision he met a line of automobiles approaching him from the north; that the defendant's truck was second in the line of traffic meeting the plaintiff; that when the plaintiff's automobile was approximately 50 feet south of the dirt road, the defendant turned his truck from the west lane of traffic and the highway across the center line of the highway into the east lane of traffic and headed into the dirt road; that when the plaintiff saw the defendant turn his truck into the east lane of traffic, the plaintiff immediately applied his brakes and turned his car to the east of the highway in an effort to avoid a collision with the defendant; that the defendant turned his truck into the path of the plaintiff so suddenly and so swiftly that the plaintiff was unable to stop his automobile or turn it to one side, and the right front and side of the defendant's truck struck the front of the plaintiff's car with great force and violence; that at the time of the collision and immediately prior thereto it had been raining slightly; that after the collision both the automobiles were carried by the impact off the highway and onto the shoulder and into a ditch; that the defendant was negligent in the following particulars: "(a) Failing to turn his truck to his right of the center of the highway so as to give one-half of the traveled highway to the plaintiff's car and to allow the plaintiff's car to pass without interference, in violation of the law of Georgia, the same being negligence per se; (b) In attempting to turn his truck across said highway and on the said dirt road without ascertaining whether the way was clear; (c) In obstructing the right of travel of the plaintiff on highway (violation of Sec. 68-309 of the Code of Georgia) the same being negligence per se; (d) In negligently driving his said truck across said highway into path of plaintiff's vehicle without reasonable warning to the plaintiff and so closely in front of plaintiff's vehicle as to make it impossible for plaintiff to avoid a collision, although the defendant knew or by the exercise of reasonable care should have known, that the plaintiff's vehicle was approaching."
The plaintiff further pleaded that his wife and daughter were injured.
Upon the trial of the case the plaintiff testified in part: that he was driving north on Highway No. 17 at approximately 50 miles per hour, and as he approached the point of the collision he met a line of traffic which consisted of three or four automobiles; that the defendant's pick-up truck was second in the line of traffic; that when he was approximately 50 feet from the truck the defendant turned the truck left in front of him; that he immediately applied his brakes and turned to the left, but was unable to avoid the collision between his automobile and the defendant's truck; that the defendant was not on his proper side of the highway when the collision occurred; that he was not sure whether there was a white center line on the highway.
The defendant testified in part: that at the time of the collision it was raining slightly but that it was daylight; that he was traveling down the highway following three or four automobiles; that he signaled a left-hand turn; that he thought he had time to cross the highway, but as he was about to cross the highway he saw that the plaintiff's automobile was approaching at such a rapid rate of speed that he could not cross; that he stopped his automobile to allow the plaintiff to pass by; that there was no center line on the highway, but he had stopped short of the center of the highway; that at the time of the collision he was approximately a foot to a foot and a half from the center of the highway. Other witnesses testified as to the positions of the automobiles after the collision, and the injuries to the plaintiff's wife and daughter.
The jury returned a verdict for the plaintiff and the defendant made a motion for a new trial. This motion was denied and the defendant excepts to that ruling.
1. The defendant contends that there was not sufficient evidence to support the verdict for the plaintiff. The facts set forth in this opinion show that there was sufficient evidence from which the jury could determine that the defendant was negligent, and that this negligence was the proximate cause of the injuries sustained by the plaintiff. The general grounds of the motion for a new trial are without merit.
2. Special ground one of the amended motion for a new trial insists that the trial judge erred in charging Code § 68-303 (c) "An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center on the highway, so as to pass without interference." The defendant's counsel contends that this section does not apply in cases of collisions arising at intersections where one of the parties makes a left turn. With this contention we cannot agree. The statute states when meeting another vehicle coming from the opposite direction on the same highway the driver must turn to the right of the center of the highway to allow the other vehicle to pass. We cannot see how meeting another vehicle at an intersection would be any exception to this rule.
The collision occurred prior to the passage of the Uniform Traffic Code and therefore Code § 68-303 would apply to this action.
3. Special ground two of the amended motion assigns as error the charge on the principles of comparative negligence. The defendant insists that the evidence and pleadings did not warrant such a charge.
There was no evidence of comparative negligence because under the evidence the sole proximate cause of the collision was the negligence of either the defendant or the plaintiff, but not of both. Both the plaintiff and the defendant testified that the collision was the result of the other's crossing the center of the highway. The jury could not believe both, because they testified that the accident took place at different places.
While we agree that there was no evidence of comparative negligence and the charge was incorrect, it was not harmful to the defendant. If the giving of this instruction was error, it was error against the plaintiff and not the defendant. The defendant is not ordinarily allowed to complain of an instruction which is to his advantage and which in no way harms him. Southern Railway Co. v. Lunsford, 57 Ga. App. 53 (3) ( 194 S.E. 602); Bibb County v. Ham, 110 Ga. 340 ( 35 S.E. 656); Mayor c. of Macon v. Humphries, 122 Ga. 800 ( 50 S.E. 986). This ground is without merit for the reason assigned.
4. In special grounds three and four the defendant's counsel contends that the trial judge failed to inform the jury that even if the plaintiff proved the acts of negligence alleged against the defendant, the defendant would not be liable to the plaintiff unless one or more of the acts of negligence alleged against the defendant was the proximate cause of the injuries to the plaintiff.
The trial judge charged the jury the following: "If on the other hand he should fail to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances to prevent injury to another he would be guilty of negligence in failure to exercise ordinary care, but it would remain a question of fact for the jury to determine whether such failure was the proximate cause of injury or damage to another."
This charge covered the rule as to proximate cause. If the defendant wished any further instructions he should have requested them. First National Bank of Blakely v. Wade, 25 Ga. App. 132 ( 102 S.E. 836). The trial judge is not required to define proximate cause without a request to do so. City Ice Delivery Co. v. Turley, 44 Ga. App. 32 ( 160 S.E. 517). Special grounds three and four are without merit for the reasons assigned.
5. Special ground five has been fully discussed in the general grounds and requires no further discussion. This ground is without merit.
6. Special ground six of the amended motion for a new trial insists that the trial judge erred in charging Code § 68-303 (f), "An operator intending to start, to stop, or to turn his vehicle to the left or right shall extend the hand and arm horizontally from and beyond the left side of the vehicle." The defendant contends that this charge was error because there was no allegation in the petition to warrant it. The plaintiff alleged that the defendant "negligently drove his said truck across said highway into the path of the plaintiff's vehicle, without reasonable warning. . ."
The objective of this law was to require the driver of a vehicle to give a reasonable warning to other drivers of his intention to start, to stop or turn his vehicle to the left or right. This charge was not error for the reason assigned.
7. Special ground seven contends that the trial judge erred in charging: "Now, the burden rests upon the plaintiff to sustain by the preponderance of the evidence his allegations and contentions. In so far as the defendant seeks to recover damages from the plaintiff from his cross-petition, the burden rests upon him to sustain by the preponderance of the evidence those allegations and contentions. By a preponderance of the evidence is meant that superior weight of evidence upon the issues involved, which, while not sufficient to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issues rather than the other." This charge was not error. Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 ( 47 S.E. 940); New York Life Ins. Co. v. Jennings, 61 Ga. App. 557 ( 6 S.E.2d 431).
The trial judge did not err in overruling the motion for a new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.