Opinion
39073.
DECIDED OCTOBER 6, 1961.
Action for damages. Fulton Superior Court. Before Judge Wood.
Powell, Goldstein, Frazer Murphy, Edward E. Dorsey, C. B. Rogers, for plaintiffs in error.
Augustine Sams, Emory Kinard, contra.
1. The first grant of a new trial, unless on discretionary grounds, is reviewable by this court.
2. If it appears that there was any expression or intimation of opinion concerning the facts, the grant of a new trial upon that ground will not be disturbed.
DECIDED OCTOBER 6, 1961.
J. L. Matthews brought suit in Fulton Superior Court for damages, alleging that he was seriously injured when the automobile of Edward J. Rice, driven by his wife, Jean Rice, struck him as he was pushing a cart along the street. After suit was filed he died, and his administratrix was substituted as party plaintiff. There was a sharp conflict in the evidence as to whether Matthews was walking along the street near and parallel to the curb, or whether he was crossing diagonally near the middle of the block. Mrs. Rice testified that he was crossing diagonally and that he came into her view and in front of her suddenly at a distance of some eight or ten feet, that she immediately applied the brakes, but did not have time in which to stop before striking the cart. The accident occurred at about 6:10 p. m. on January 15, when it was already dark and misting rain. In the course of his charge the court stated to the jury that: "One who knowingly and voluntarily takes a risk of injury to his person the danger of which is so obvious that no person of ordinary prudence would subject himself thereto cannot hold another liable for damages for the injuries thus occasioned." The jury returned a verdict for the defendant, and plaintiff moved for a new trial, afterwards amending the motion by adding twelve special grounds. Upon a consideration of the motion the trial judge sustained it upon special grounds 5, 6, 7 and 8, in all of which error was assigned on the portion of the charge quoted above, contending, among other things, that it amounted to the expression of an opinion by the court that Matthews had observed a peril and, having observed it, proceeded recklessly to test it. All other grounds of the motion were overruled. Error is here assigned on the granting of a new trial on these special grounds.
1. Since the new trial here was granted on special grounds of the amended motion, and not on discretionary grounds, it does not fall within the rule that the first grant of a new trial shall not be disturbed. Code § 6-1608, as amended by the act of 1959 (Ga. L. 1959, pp. 353, 354).
2. There must be no expression of opinion on the facts by the court in its charge to the jury, and if such there be, a new trial must be granted. Code § 81-1104.
We are persuaded that the trial judge felt that there was some expression of opinion by him, in view of the conflict in the testimony, that Matthews did test a peril that he had observed. If the jury believed that Matthews was walking along the street near to and parallel with the curb, then this portion of the charge would have no application; it would come into play only if they should conclude that he was walking across the street and that he, after observing Mrs. Rice coming only a few feet away, determined that he would get across in front of her. This was not explained to the jury, and we are constrained to agree that they may have concluded that the judge was expressing an opinion that it was this situation, rather than that contended by plaintiff, with which Matthews was faced and with which he dealt. The trial judge, having delivered the charge, and having come to the conclusion that he committed error in the expression of an opinion, his grant of a new trial ought to be affirmed unless the record clearly, unmistakably and unequivocally demonstrates that no opinion was expressed.
Judgment affirmed. Carlisle, P. J., and Nichols, J., concur.