Summary
In Sutherland v. Woodring, 103 Ga. App. 205, 214 (118 S.E.2d 846) (1961), the plaintiff was held not to be bound by testimonial admissions where her testimony was not the sole testimony and the evidence authorized a finding in her favor. It is thus problematic whether the plaintiff's deposition testimony constituted admissions in judicio.
Summary of this case from Cameron v. MooreOpinion
38500.
DECIDED MARCH 2, 1961.
Action for damages. Gordon Superior Court. Before Judge Davis.
Wm. A. Ingram, for plaintiff in error.
R. F. Chance, contra.
1. The court did not err in overruling the general grounds of the motion for a new trial for the reason that the evidence did not demand a finding that the defendant Sutherland was not guilty of gross negligence.
2. The court did not err in overruling grounds 4, 5, 6 and 7 for the reasons stated in the opinion.
3. The court erred in refusing to grant the defendant the right to open and conclude the arguments under the circumstances of this case as shown in Division 4 of the opinion.
DECIDED MARCH 2, 1961.
Barbara Woodring, through her mother as next friend, filed suit against J. H. Sutherland and Dudley Dilbeck seeking recovery for injuries sustained in an automobile collision. By amended petition the plaintiff alleges the following: that at 7:30 p. m. between twilight and dark, on April 16, 1959, she was a passenger and guest in the defendant Sutherland's automobile; that Sutherland was traveling north and Dilbeck south and neither could see the other until they were 40 to 50 feet apart; that the two vehicles approached each other at approximately 40 miles per hour and were involved in a head-on collision at the intersection of Mosteller Springs Public Road and Erwin Hill Public Road; that the intersection was at the crest of a hill, on a road which was 18 to 19 feet in width; that the cars crashed with great force and the plaintiff was thrown through the windshield of Sutherland's car; that the resulting injuries consisted of a broken jaw, malocclusion, deep and ugly cuts about the face, the loss of her right eye, partial closure of the left eyelid, and resulting nervousness; that Sutherland and Dilbeck were guilty of gross negligence per se, violating Code Ann. §§ 68-1626 (a) and (c); 68-1634, and 105-112; that in driving at a speed greater and exercising less control than reasonable and prudent under hazardous conditions, in failing to reduce speed approximately when approaching a hillcrest, in failing to give each other half of the road, in failing to turn right when meeting each other, in failing to apply brakes and in failing to keep a vigilant lookout ahead.
The defendant Sutherland denied all of the pertinent allegations of the petition and alleged: that he had reduced speed to approximately 10 miles per hour; that he blew his horn warning the approaching vehicle; that he drove as close to the righthand ditch as possible; that he was stopped at the time of the collision.
The jury rendered a verdict for the plaintiff against the defendant Sutherland and in favor of the defendant Dilbeck. To this verdict and judgment Sutherland filed his motion for a new trial on the general grounds and amended to add the following grounds: (4) That error was committed by the court in charging, "I charge you that if you find one defendant guilty of ordinary negligence and one defendant guilty of gross negligence in this case, and if their joint and concurrent acts were the proximate cause of the injury, if you find there was injury, then both would be liable"; (5) that the court erred in not granting a mistrial when the plaintiff testified, "But the insurance adjuster showed me some pictures"; (6) that the court erred in not granting a mistrial when the plaintiff testified, "As to whether or not Mr. Sutherland ever come over to see me at the hospital; well, once, one time; that was right after the insurance man talked to me, the insurance man came over to the store and told him he could come over to the hospital and see me, and he came over there and stayed about five minutes one time"; (7) that the plaintiff made solemn admissions in judicio which shows the defendant was not guilty of gross negligence when she stated, referring to the defendant, "I don't think he was breaking any speed limit. I don't remember him driving fast around that curve . . . the road was wide enough for two cars. . . He wasn't driving any faster than I would have been driving. As to whether or not he did get pretty close to a stop; well, I don't know. . . I don't know whether Harry blew his horn or not. . . I don't know whether he applied his brakes or not"; (8) that when all of the evidence was in, the defendant, not having introduced any evidence, demanded the right to opening and concluding arguments and that the court refused to grant it.
The court overruled the motion for a new trial on all grounds and to this ruling the defendant Sutherland excepts.
The material evidence bearing on the general grounds is as follows: Barbara Woodring, plaintiff, testified as follows: "I am sixteen years old. At the time of this injury I was fifteen years old. I was riding in Harry Sutherland's automobile on the date that I received my injuries. . . Yes, this is the first time I have been in court and I am a little bit afraid. . . As to whether or not I asked him or he asked me to go riding on that occasion; well, I didn't ask him . . . he surely must have asked me. . . I met Harry behind the spread house. As to where we went then, well, we turned down River Street, then we turned off some road, we got off of the McDaniel Road, we left the pavement, we were still on the McDaniel Road, and what road we turned off I don't know. . . . I would say it was between twilight and dark. I don't remember whether the lights were on on the car. . . This was on a dirt road . . . it was winding and hilly. As to whether or not I recall where the accident took place . . . it was on a hill. . . Yes, I have looked at speedometers on automobiles that I have ridden in to see how fast I was going. No, I was not looking at the speedometer on this occasion. . . In my opinion, Harry was going thirty-five or forty on this occasion. As to whether or not I saw the other car before they came together, the Dilbeck car; well, I just barely saw it, you know, it happened so fast. . . Yes, we were meeting one another. As to whether or not the two cars came right together; well, they came together but both headlights didn't come together, both of the headlights didn't hit together, it was the one on the left side of each car. . . The left front portion of the Dilbeck car hit the left front portion of the Sutherland car and vice versa; . . . in my best opinion it was on top of the hill; on the very top of the hill. As I approached the top of the hill I could not see over the hill. As to how far Mr. Dilbeck's car was away from me when I first saw it; well, I don't know how many yards, or anything like that . . . as to whether or not I could tell which side of the center line he was on or about where he was with reference to the center, both cars; well, my best opinion is that Harry was more on Dilbeck's side then Dilbeck was on our side. I did not see Mr. Dilbeck long enough to tell how fast he was traveling on that occasion . . . when the cars came together I was knocked unconscious . . . I didn't pay any attention to whether he cut the lights on, I didn't see any lights. No, I didn't see any lights on Mr. Dilbeck's car either. . . I would say we had been riding about twenty minutes when this happened. . . I don't remember if we got on the road leading to Fairmont . . . as to whether or not we had just turned into this road, or whether we had been on this same dirt road for a good little piece; well, I don't remember. . . As to whether or not I told Mr. Chance and the jury a few minutes ago that when the two cars came together that Mr. Dilbeck was a little on my side of the road and that Harry was a little on his side of the road; well, by that I meant that neither of them was as far on their side of the road as they should be. . . I do not have any opinion as to how wide that road was, I know that it wasn't as wide as the highway, but I believe there was room for two cars to pass. . . Yes, the surface of it was a fairly good surface for a country road. . . As to whether or not Harry had stopped his car when we hit; well, no, sir, I don't believe I remember him stopping his car. As to whether or not he put on his brakes and slid just before the wreck; well, I don't remember that either. . . . No, he wasn't stopped, I am sure of that. . . I don't know how fast Mr. Dilbeck was going, I just barely saw him. . . No, I didn't see any lights on Mr. Dilbeck's car before the wreck. . . My opinion is that they were both on each other's side of the road, but I don't know. . . Just before this wreck, as to whether or not Harry blew his horn, whether I heard him blow his horn; well, I don't recall him blowing his horn. . . As to whether or not Harry was driving any faster on this Fairmount-Rome Road than he would usually drive in such situations; well, I don't think he was breaking any speed limit. No, sir, he was not breaking any speed limit that I know of on this entire trip. . . I don't remember him driving fast around that curve. . . If he had been driving real fast around that curve, I think I would have remembered it. . . No sir, he wasn't driving any faster than I would have been driving; he wasn't driving fast. . . As to whether or not there was just barely room for two cars to get by in my opinion; well, I would say that there was room. . . Yes, as he (Sutherland) was driving along there he was driving just about like anyone would have been. . . I don't know whether he applied his brakes or not." Charles T. Smith, sworn on behalf of the plaintiff, testified as follows: "As to what I did in the course of my investigation. . . I measured the width of the road there; it was nineteen feet and three inches wide . . . with reference to the top of the hill; well, it was almost to the top . . . the Pontiac was traveling in a northerly direction, and the Chevrolet was traveling in a southern direction. I did not measure the tracks laid down by the Dilbeck car . . . the tracks laid down by the Sutherland car were seven feet, three inches, from the west side of that roadway there . . . there was not a center line there. Assuming that there was a center line out there, as to where that would put the Sutherland car with reference to the center; well, it would put his left front wheel two feet, seven and a half inches, over. As to whether or not there is a road leading off to the south off of the Mosteller Springs Road to the Erwin Hill Settlement back there just south of the accident; well, there is a road that leads back north, that is off of the east side of the Mosteller Springs Road. As to how close this accident was to this intersection; well, approximately twenty-five feet north, may be a little more. Yes, the Sutherland car had just passed this intersection . . . we estimated the speed . . . both of them at twenty-five. . . As to approximately how wide is an automobile of the two types that were involved in this wreck; well, approximately six feet. . . . From my investigation there and from the physical facts which I found, if the Sutherland car had been on his side of the road, as to whether or not he would not have hit Mr. Dilbeck; well, in my opinion, he would not have. . . Out there on that dirt road at night they could have hit anyway, you can't split a hair that fine . . . that road was nineteen feet, three inches, in width; that was measured from the top of the ditch to the top of the ditch . . . that is a narrow country road there; it varies in width at various places . . . there was an embankment on the east side . . . there was brush and bushes and things of that sort growing on that embankment, overhanging there. As to whether . . . a person would have to get over a little, he psychologically would; well, he probably would, yes, sir. Yes, that would affect very materially the actual center of the traveled portion of that roadway as compared with the actual center of it . . . a reasonable prudent person driving along there would vary some about how far he might drive from that embankment. . . I estimated the speed of the vehicles each one of them at twenty-five miles an hour at the time they came together. No, I don't mean by that that the Pontiac was going twenty-five before he put on his brakes. In my opinion, they were both traveling at that speed at the time they came together . . . there would have been room for the Dilbeck car to have passed the Sutherland car without colliding. . ." Dudley Dilbeck, defendant, sworn for the purpose of cross-examination, testified as follows: "I am Dudley Dilbeck. . . . I was traveling south. . . I had my light on . . . it was just good dusky dark. . . I couldn't see over that hill. . . I was traveling on the right side of the roadway, that would be the west half . . . the first notice I had of the approach of the Sutherland car; well, I saw the lights. As to whether or not I could see the lights reflect just over the crest of the hill before I could see the car itself; well, just a little before I could see him real good. Yes, I did have a little notice of the approach of the car before I could see it . . . immediately after I saw the reflection from the lights then the car appeared. . . Supposing that there was a center line in the road the Sutherland car would have been on the left side of the center line; that would have been on my half of the highway, supposing the highway to have been divided into halves, on my half of the road. . . It was the left front headlight on each car that collided. . . I was traveling right on the edge of the ditch. If I had gone any farther to the right or to the west I would have been in the ditch. . . I did not hear Harry blow his horn just before this wreck happened. He sure wasn't stopped at the time that we came together. I was driving a 1956 Chevrolet and he was driving a 1954 Pontiac. . . I was driven back up from the point of impact. . . I don't travel that road every day. . . Yes, that is the usual way that I went home. Yes, that is a narrow road there; there is not a double track there, just one track. It is a single line of traffic and usually it is about in the center of the road. Yes, the main traveled portion of that road was about in the center, and sometimes it varied to the left and sometimes to the right . . . when I saw him there he was traveling about twenty or thirty miles an hour. . . " Harry Sutherland, defendant, sworn for the purpose of cross-examination, testified as follows: "I was driving a `54 Pontiac automobile. I was traveling in a northerly direction. . . Where this accident occurred, as to whether or not there is an intersection; well, there is a little road that leads off to the right, right below where it happened. As to how far this collision was from the intersection; well, it was about ten or fifteen feet . . . my lights were on on that occasion, and Dilbeck had his lights on too. I saw the reflection of the lights of the Dilbeck car . . . as I was approaching the crest of this hill, it is rather steep, it is up-grade, and as I got almost to the top of the hill, this little road turns off to the right, and there was overhanging bushes there . . . they were hanging out approximately three and a half feet from the right side of the road into the road, I moved around those bushes and back over to the right, and I saw his headlights come over the hill. . . I had been along that road before in my lifetime . . . a person coming from the north to the south, the direction that Dilbeck was traveling, would have a better opportunity to see than I had. Over to the west of the highway there is not any woods or bushes . . . is all cultivatable or pasture land and it is open . . . as to what rate of speed I would say that the Dilbeck car was traveling; well, I would say about thirty-five miles an hour, thirty-five to forty miles an hour. . . . I was over, in my opinion, as far as I could safely drive to the right-hand side of the road. . . I thought I was far enough to the right to avoid hitting him, I had almost stopped or had stopped. . . I was veering to the right, trying to get as far to the right as I possibly could . . . nobody knows where the center is at night on the road, you can't tell, it would be an impossibility to tell where the center of that road was until it was measured, it would be impossible. . . As to whether or not I don't mean to leave the impression on the jury that the two cars could not pass there in safety; well, they could pass safely at about thirty to forty miles an hour in the daytime without any trouble at all. At nighttime as to how fast they could pass in safety; well, it would be a lower speed. As to why I say that; well, because of those overhanging bushes on the road, you actually don't tell where the right and left side of that road was in approaching the crest of the hill, it gives you the illusion that that road is much narrower than it really is . . . when I saw the lights of the Dilbeck car, as to whether or not I made any signal or blow any horn or do anything to put him, Dilbeck, on notice that there was another car; well, I kept flashing my lights prior to going over the hill; it is a habit, and my horn was blowing at the time of the impact because my hand was mashed into my chest with the steering wheel. . . I flashed them back, from dim to bright to dim. . . . I had time to flash my lights two times; I did that as I was approaching the hill, as soon as I saw his lights. . . It would have been more on my side of the hill. As to whether or not I was skidding up-hill; well, I had my brakes on, if you call that skidding, I was. No, I am not denying the skid marks that I left going up-hill there before the collision. . . Dilbeck was in the tracks of the road. If the road was nineteen feet and three inches wide and I was two feet and some six inches over on Dilbeck's side of the road, as to whether or not Dilbeck wasn't on my side; well, he was. . . As to whether or not my swear is that what caused this wreck was these bushes hanging over the road and Dilbeck being on my side of the road and I had nothing to do with it; well, to the best of my knowledge I did not."
1. (a) The evidence did not demand a finding that Sutherland was not guilty of gross negligence. This kind of question is usually one for the jury and we do not think this case comes within the narrow class of cases where the court can decide the question as a matter of law. This is the day of motor transportation, wrecks, collisions, traffic deaths, traffic injuries and heartbreaks. What was ordinary care in the horse and buggy days is no longer the measure of such care. What used to be considered ordinary negligence now can be classed as gross because of new conditions, new responsibilities, new duties, and new hazards. Without going into the evidence which we have set forth, suffice it to say that the finding was authorized that Sutherland (and we are only dealing with his negligence in this appeal) was guilty of gross negligence in taking a chance of meeting and passing another automobile on a familiar, narrow, country dirt road when there was barely room to pass, when about three feet of his side of the road was obstructed by limbs of trees, and in turning briefly to his left to avoid the obstructions with only a guess as to whether he had time to get back on his side, and especially so since he knew that another automobile was approaching. There is no merit in the general grounds. (b) As to ground 7 of the amended motion, the jury was authorized to disregard the young plaintiff's opinion which she expressed about the care which Sutherland was exercising. She was young, inexperienced and frightened. Even if the jury was not so authorized, the rule invoked by the plaintiff in error is not applicable when the plaintiff's testimony is not the sole testimony and evidence authorizes a finding in the plaintiff's favor.
2. Ground 4 of the amended motion for a new trial complains of the following charge to the jury: "I charge you that if you find one defendant guilty of ordinary negligence and one defendant guilty of gross negligence in this case, and if their joint and concurrent acts were the proximate cause of the injury, if you find there was injury, then both would be liable." There is no merit in this ground. The excerpt complained of in this ground was given in connection with a charge on concurring negligence and was not an attempt to instruct the jury as to how much negligence was required to find against the respective defendants. Immediately following the excerpt complained of the court specifically charged the jury that before the defendant Sutherland could be liable the jury must find him guilty of gross negligence.
3. There is no merit in grounds 5 and 6 of the amended motion. The jury was qualified as to one insurance company. The reference by the plaintiff to an insurance adjuster cannot be said to have led the jury to believe that Sutherland was the only defendant who had insurance. The reference to an insurance adjuster could have just as easily led to the conclusion that both defendants had insurance with the same company, that Dilbeck was the defendant who had insurance, or that the insurance adjuster represented the insurance company which had insured the plaintiff.
4. Ground 8 of the amended motion for a new trial complains that the court erred in not granting the defendant the right to open and conclude the arguments to the jury under the circumstances of this case. This court certified to the Supreme Court the following question which states the circumstances under which the court refused to grant the defendant the right to open and conclude: "Is the defendant in a civil case entitled to the opening and concluding arguments where the plaintiff's counsel calls him to the stand for the purpose of cross-examination, and where the defendant's counsel examines the defendant while on the stand in such circumstances on material issues in the case, after the completion of the cross-examination of the defendant by plaintiff's counsel, nothing further in the way of evidence of any other kind having been introduced by the defendant?" The Supreme Court in Sutherland v. Woodring, 216 Ga. 621 ( 118 S.E.2d 482) answered the above certified question in the affirmative. It therefore follows that the court erred in not granting the defendant the right to open and conclude the argument.
The court did not err in overruling the motion for a new trial on the general grounds or any of the other special grounds of the amended motion with the exception that the court erred in overruling the motion for a new trial because of the error complained of in Ground 8 of the amended motion.
Judgment reversed. Nichols and Bell, JJ., concur.