Opinion
36072.
DECIDED APRIL 20, 1956. REHEARING DENIED MAY 2, 1956.
Damages. Before Judge Jones. Albany City Court. November 29, 1955.
Peacock, Perry Walters, Hatcher, Smith Stubbs, for plaintiff in error.
Farkas, Landau Davis, contra.
1. The evidence demanded a verdict for the defendant contracting company, and the trial court erred in denying its motion for a judgment notwithstanding the verdict.
2. The remaining assignments of error need not be considered.
3. The motion that this court refuse to consider any assignments of error involving a consideration of the brief of evidence, upon the ground that there has been no bona fide effort to brief the evidence, is without merit.
DECIDED APRIL 20, 1956 — REHEARING DENIED MAY 2, 1956.
Following the decision of this court in this case when it was first before this court ( Wright Contracting Co. v. Davis, 90 Ga. App. 548, 83 S.E.2d 232), and after the remittitur of this court had been made the judgment of the trial court, the plaintiff amended her petition. As finally amended — the allegations of the final amendment being indicated by inclusion in brackets — the material allegations of the petition are substantially as follows:
(1) John W. Davis died on June 12, 1953, and petitioner was appointed and duly qualified as temporary administratrix of the estate of John W. Davis on June 17, 1953. The deceased, John W. Davis, was the husband of (Mrs.) Mabel Davis.
(3) The defendant, Wright Contracting Company, was on or about June 6, 1953, and for several weeks prior thereto, engaged in resurfacing a public road known as U.S. Highway No. 19, and State Highway No. 3, from Albany, Georgia, south, to the Mitchell County line a distance of approximately ten miles.
(4) Wright Contracting Company was engaged in the resurfacing of the highway and was in actual charge of constructing and resurfacing the highway at the time of the accident hereinafter alleged.
(5) The highway from Albany south to the Mitchell County line is a very heavily traveled road, being one of the main North (South) arteries in the Federal system of highway in the United States, and one of the main arteries of the highway system of the State of Georgia. This fact was well known to Wright Contracting Company at the time the said defendant undertook to resurface and recondition the road.
(6) Wright Contracting Company was engaged in resurfacing the road by placing layer upon layer of asphalt type material on the road, thereby elevating the road to a distance of 18 inches above the highway; the elevation varied from place to place on the road. The elevation of the road made travel by vehicular traffic on the road extremely hazardous and unsafe for motorists by reason of the fact that any slight deviation of the wheel in steering would cause a vehicle to run off of the elevated highway, and make it almost impossible to return to the highway without turning the car over or losing control, once a vehicle had left the highway.
(7) [On or about June 6, 1953, at approximately 1:15 p. m., Davis was proceeding south on the highway, driving his new 1953 Studebaker, alone; and at a point approximately eight miles south of Albany on the highway, Davis, not having the benefit of a center line on the new pavement and relying on the road's being in good condition and hard, was driving on the right side of the road, and hit a soft spot near the edge of the road which was rounded or beveled; this condition of the road caused his car to go out of control and to go partially off of the paved surface of the highway; the right wheels of the car went off of the highway, and the paved surface being elevated six to eight inches over the dirt shoulder at the point where the right wheels of the car left the paved surface further caused the car to go, and remain, out of control as the car contacted the elevated surface, causing the car to veer to the left diagonally across the road and into a telephone pole on the left, or east, side of the highway.] Davis was thrown into and through the windshield of his automobile and received a mortal wound. He was rushed to the hospital in Albany, Georgia, by ambulance, lingered for six days, and died there.
(8) The proximate cause of Davis's death was the negligence of the defendant, Wright Contracting Company, in the following particulars:
[a. The defendant in undertaking to resurface the road, elevated the paved surface of the road a distance of approximately six to eight inches above the shoulders of the road at the point where Davis's automobile partially left the paved surface of the road, the right wheels having left the paved surface; the elevation constituted a dangerous and hazardous condition which the defendant created and maintained in resurfacing the highway. The conduct of defendant contributed as a proximate cause of the death of the plaintiff's husband as alleged in paragraph 7.]
b. The road was maintained during the period of resurfacing by the defendant in a dangerous condition on a heavily traveled highway, in that no center line or other suitable marking system was provided to assist motorists in negotiating the highway, and in correctly estimating the relative position of a vehicle on the highway. The dangerous situation created by the failure to provide a center line or other marking system was exaggerated and increased by the fact that the newly resurfaced road was uniform in color and appearance. [The failure to have the center line, as above alleged, was deceiving in that it did not put plaintiff's husband on notice of the proximity of the end of the pavement or enable him to judge the distance to the edge of the pavement and therefore caused plaintiff's husband to approach the end of pavement.]
c. The defendant was negligent in the manner of constructing the edge of the highway, in that it was left in a rounded off or beveled condition, which was prone to mislead those who traveled upon the road, because a car which drove on this rounded or beveled section would be caused to veer to the outside and off of the paved section of the highway. [Had not the edge of the highway been rounded off and soft, the car in which plaintiff's husband was riding would not have gone off the pavement and the injury to plaintiff's husband would not have occurred. The rounded off and soft edge of this pavement caused plaintiff's husband to lose control of the car through no fault of his own, and after losing control, to strike a telephone pole, which caused the death of plaintiff's husband.]
d. The defendant was negligent in failing to provide any lateral protection of any kind to prevent vehicles from sliding or slipping off the elevated paved road. [Had there been any lateral protection, plaintiff's husband's car would not have gone off the road and he would not have been injured as alleged in the petition.]
e. The defendant was negligent in failing to provide adequate warning signs along the road. [Had there been sufficient signs or adequate warning, plaintiff's husband could have been on his guard to avoid approaching the edge of the pavement and the right wheels of his car would not have left the pavement and plaintiff's husband would not have suffered the injury alleged in the petition.]
f. The defendant was put on notice of the dangerous condition in which the highway was being maintained during the period of resurfacing by the fact that there were frequent similar type accidents along this ten mile stretch of road prior to the accident in which Davis was killed, and the defendant took no steps to correct the dangerous situation in which the road was being maintained. The accidents occurred within a period of seven days prior to June 6, 1953, and happened in a manner similar to the one alleged here, while the highway was in the same condition as alleged here. The defendant knew, or in the exercise of ordinary care should have known, of the dangerous condition of said highway.
g. All of the above-mentioned acts of negligence as set forth in this paragraph of the petition were enhanced and aggravated by the fact that the defendant had notice of the dangerous character of the road, as mentioned in the paragraph above.
h. The road was open to the public before it had hardened and dried sufficiently to become safe for vehicular traffic to negotiate, and the road was slick, oily and dangerous. [The opening of the road to the public by the defendant was equivalent to an implied invitation to plaintiff's husband that same was safe and plaintiff's husband acted upon this invitation and believed the road was safe, and by reason of the condition alleged in this subsection, the car left the road and he was injured as alleged in the petition. The road was in such a hazardous condition that it was negligence on the part of the defendant to permit it to be open to travel under the circumstances.]
i. The defendant was negligent in not providing an appropriate detour to channel traffic around the dangerous and hazardous road during the period of its construction, since it had knowledge of the dangerous situation which would be created by the resurfacing of the road, and such dangerous condition was actually created during the period of construction of the road. [The defendant, with knowledge of the dangerous condition of the road, should have provided a detour, and its failure to do so caused plaintiff's husband, without knowledge of the danger, to use the road, but had said detour been provided, the dangerous situation would have been avoided, and the plaintiff's husband would not have been injured.]
j. In failing to provide adequate guards or construction men to warn approaching motorists of the peculiar hazard created by the resurfacing and elevation of the highway. [Had the defendant given sufficient warning to plaintiff's husband of the dangerous condition of the road, plaintiff's husband would not have been injured as set out here, and the failure of the defendant to provide such warning caused plaintiff's husband's car to go off the road and caused him to be injured as alleged.]
k. Davis was killed due to the above items of negligence on the part of the defendant, which were the proximate cause of his death.
[l. The various acts of negligence in paragraph 8a, 8b, 8c, 8d, 8e, 8f, 8g, 8h, 8i, 8j, and 8k above, caused and set into motion a chain of events which caused the death of plaintiff's husband; each act of negligence was tied in with the other acts of negligence in varying degrees, and caused the plaintiff's husband to lose control of his car and hit the telephone pole, all due to no fault of his own, and due to the fault of the defendant.]
Paragraphs 9 and 10 set forth and alleged the extent of the damages sustained as a result of the death of the plaintiff's husband.
11. All of the conditions and facts set forth in paragraphs 2, 3, 4, 5, 6, 8, and all subsections of paragraph 8 caused and contributed to Davis's car going off the highway and subsequently returning to the highway and being wrecked, and contributed to and caused the injury and damage complained of.
12. The highway at the place where the accident occurred was 19 feet wide.
Following the amendment to the petition, the defendant renewed and insisted upon all prior demurrers, both general and special, and further specially demurred to the petition upon some 34 grounds. The trial court overruled all of the demurrers, both general and special.
Upon the trial of the case and at the conclusion of the evidence, the defendant made a motion for a directed verdict which was denied. The jury returned a verdict for the plaintiff in the sum of $4,000.
The defendant's motion for a new trial, based upon the usual general grounds and 9 special grounds, was denied, and he assigns error here upon that judgment.
The defendant's motion for a judgment notwithstanding the verdict was denied, and he assigns error here upon that judgment.
1. While in this case the plaintiff wife, as administratrix of the estate of her deceased husband, seeks to recover his burial expenses, the expenses for ambulance service, and to recover for the complete destruction of his automobile, the evidence in this case is essentially the same as that in Davis v. Wright Contracting Co., 90 Ga. App. 585 ( 83 S.E.2d 567), in which the plaintiff wife sought to recover for the full value of her husband's life. In that case this court held that the evidence demanded a verdict for the defendant contracting company. The reasoning given for the ruling in that case is adopted in the present case, and we hold that the evidence here demanded a verdict for the defendant contracting company. The trial court, consequently, erred in denying the defendant's motion for a judgment notwithstanding the verdict, and direction is given that the trial court enter a verdict in accordance with the defendant's motion. Code (Ann. Supp.) § 110-113.
2. In view of the ruling in division 1 of this opinion, it is unnecessary to consider the assignments of error upon the overruling of the special demurrers to the petition or to consider the assignments of error contained in the motion for a new trial.
3. The defendant's motion that this court refuse to consider assignments of error involving a consideration of the brief of evidence, upon the ground that there has been no bona fide effort to brief the evidence, is without merit. While the brief of evidence is exceedingly long and cumbersome, it contains no rulings of the court, colloquies between counsel, or between counsel and the court, and none of the questions and answers appears to be upon irrelevant or immaterial issues, which should have been stricken under the provisions of Code (Ann. Supp.) § 70-312. See, upon this subject generally, McDonald v. Fletcher, 211 Ga. 405 ( 86 S.E.2d 215), and citations.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.