Dixie-Ohio Express, Inc. Et Al. v. Brackett Et Al., 106 Ga. App. 862, 128 S.E.2d 642 (1962)
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Pittman & Kinney, L. Hugh Kemp, Wright, Rogers, Magruder, Hoyt & Walther, Dudley B. Magruder, for plaintiffs in error.
1. The portion of the charge on accident as complained of in special ground 1, while not a complete charge on the subject, was not erroneous; nor was it in conflict with other portions of the charge which fully instructed the jury as to accident. Neither was it calculated to lead the jury to believe that the plaintiff could recover for any negligence of the defendants amounting to less than the failure to exercise the degree of care required of them in the circumstances or for any negligence that was not the proximate cause of the death of the plaintiff's husband.
2. The mere prefatory statement by the judge, in charging the jury, that the jury had two kinds of negligence to deal with, when considered in its context did not amount to an expression of an opinion or intimation as to what had been proved.
3. Where counsel for the defendant stood silently by and made no objection to the court reporter playing back, in response to a request from the jury, a lengthy portion of the testimony of a witness on cross-examination as pointed out to the reporter by counsel for the plaintiff, it was too late after the procedure was completed for counsel for the defendant to move for a mistrial on account of matters which could have been raised by a timely objection to the procedure in advance.
4. Where a witness testified, without objection, as to the speed of the defendant's truck without first testifying as to facts showing that he had an adequate opportunity to observe and form an opinion as to the speed, it was too late after cross-examination of the witness to move to strike his testimony as to the speed. The weight and credit to be given such evidence was for the jury.
5. An instruction which was manifestly not applied by the jury in rendering its verdict is not harmful error.
6. The admission of hearsay evidence over the objection of two of three defendants sued as joint tortfeasors where such evidence related solely to an issue between the plaintiff and the third defendant was not harmful to the objecting defendants and is not cause for the grant of a new trial.
7. Instructions not warranted by the evidence and which inject extraneous issues into the case tend to confuse the jury as to the real issues and are presumed harmful unless it is apparent that the jury could not have been misled thereby.
In this case there was no physical evidence contrary to the sworn testimony of the defendants' witnesses, and no evidence which was inherently incredible or contrary to the natural laws of universal application, and it was error to instruct the jury so as to lead them to believe that they would be authorized so to find.
8. The evidence did not demand a verdict for the defendants, and the court did not err in overruling the motion for a judgment n.o.v. and in overruling the general grounds of the motion for new trial.
Martha Nell Brackett sued Dixie-Ohio Express, Inc., Richard Glenn Smith, Jr., and Alden Dean for damages on account of the death of her husband. The occurrence which resulted in Mr. Brackett's death was a collision between a truck of the defendant trucking company being driven in a southerly direction along U. S. Highway 41 by Smith and an automobile owned by Dean and being driven in a northerly direction along said highway. The collision occurred on November 14, 1959, at about 7:30 p.m. at a point approximately one mile north of the city limits of Calhoun, Ga. It appears from the pleadings and from the evidence adduced upon the trial that the plaintiff's decedent was riding as a passenger in Dean's automobile. Either Dean himself or one Gene Stephens was driving the automobile, there being some dispute in the evidence as to which. According to the undisputed evidence it was dark and misting rain and the highway was wet and slippery. According to Dean's and Stephens' testimony, the automobile was following another automobile at a distance of some 40 or 50 feet and at a speed of 40 or 45 miles per hour; that the other automobile suddenly stopped at a point where the defendant trucking company's truck was approaching from the north at a distance of sonic 200 feet; that the driver of Dean's automobile applied the brakes and the automobile went into a skid, ending up more or less "cross ways" the pavement with the front end protruding some two or three feet over the center line of the highway, at which point it was struck by, or collided with, the truck. Brackett was thrown out of the automobile and run over by the truck, apparently being killed instantly. One of the issues made by the evidence was how close to the automobile was the truck at the time the automobile came to a stop, if it in fact came to a stop, before being struck by the truck or before skidding into the truck, and a related issue was whether the truck was being operated at too high a rate of speed for the conditions then and there existing and whether the defendant Smith, the driver of the truck, could have avoided the collision in the exercise of ordinary care. The jury found a verdict for the plaintiff and against all of the defendants in the amount of $12,500, and the defendants Smith and the trucking company made a motion for a judgment notwithstanding the verdict and a motion for new trial, which latter motion was later amended by the addition of 15 special grounds. The trial court overruled those motions and the exception here is to the overruling of those judgments. Such other facts as are necessary to an understanding of assignments of error and the rulings made will be set forth in the opinion.
(After stating the foregoing facts).
1. The first special ground of the motion for new trial complains of the following charge on accident: "I charge you gentlemen, that an accident in the legal sense means the lack of negligence on the part of the driver of either vehicle. If you find from the evidence in this case that there was negligence, or carelessness on the part of either or both operators of the vehicles involved, then you would disregard any charge on the questions of accident as to such driver that I have given you in this case." It is contended that this charge was erroneous and not sound as an abstract principle of law, was misleading, confusing and prejudicial because it was in conflict with other portions of the charge which clearly instructed the jury as to the law of accident; that it was calculated to lead the jury to believe that if there was any negligence on the part of either defendant the plaintiff would be entitled to recover notwithstanding that such negligence did not amount to the failure to exercise the degree of care required of such defendant in the circumstances and notwithstanding that any such negligence was not shown to have been the proximate cause or a contributing proximate cause of the collision.
The judge elsewhere in his charge correctly defined an accident as applied to automobile collision cases of the type here involved when he instructed them in the following language: "Gentlemen, I charge you that an accident, in a strict legal sense as applied to negligence cases, refers to an event which is not proximately caused by negligence, but instead arises from an unforeseen or unexplained cause. An accident may indicate a happening which, although not wholly free from negligence by some person, was not proximately caused by a failure of either of the parties to the case to exercise the degree of care in the situation placed upon them by law," and he thereafter, in response to a request of the foreman of the jury after the jury had deliberated and returned to the courtroom, recharged the jury substantially to the same effect. While we recognize the rule that the jury should not be required to pick and choose between correct and incorrect expositions of the law set forth in the judge's charge, and that where the trial judge in his charge gives to the jury an incorrect statement of the law with respect to a particular matter, it is incumbent upon him, if he thereafter undertakes to give to them a correct statement, to expressly call to the jury's attention the incorrect statement and withdraw it from their consideration (Brooks v. Wofford,
2. After instructing the jury as to the contentions of the parties and the issues made by the pleadings and preliminary to giving them the law applicable to the case, the judge charged the jury as follows: "Now, gentlemen, in this case, you have two degrees with care to deal with. You have ordinary care and you have slight care. The court will define those in connection with ordinary negligence and gross negligence, because you have ordinary negligence to deal with in this case and you have gross negligence to deal with." It is contended in special ground 2 of the motion that in using the language, "You have ordinary negligence to deal with in this case, and you have gross negligence to deal with," that the court was intimating or expressing an opinion to the jury that there was negligence in the case on the part of one or more of the defendants and it is further contended that this intimation or expression of opinion was not removed by the court's later charge that it was not expressing an opinion as to what had or had not been proved. Applying the rules of law respecting consideration of the charge as a whole in determining whether an extracted portion thereof is error, as stated in the preceding division of this opinion, this portion of the charge, while perhaps inapt, was not subject to the criticisms made. Immediately following the quoted portion of the charge, the judge instructed the jury that the defendant trucking company and Smith were under a duty to exercise ordinary care, and the defendant Dean, or his driver, was under a duty to exercise slight care at the time and place complained of, and the court then proceeded to define the terms "ordinary negligence" and "gross negligence" in connection therewith. Thereafter the court, as pointed out in the preceding division, instructed the jury as to the burden on the plaintiff of proving negligence on the part of the defendants as charged in her petition that if the defendant trucking company and its driver, Smith, were in the exercise of ordinary care plaintiff could not recover, and at the conclusion of his charge the judge instructed the jury fully and extensively as to the provisions of the "dumb act" and cautioned the jury that they should not consider any statement or act on his part as amounting to an expression of opinion and that the province to decide all issues of fact was solely with the jury. The court did not commit harmful or reversible error in charging as complained of in this special ground.
3. After the jury had retired to deliberate the issues it returned to the courtroom and the foreman asked the judge to have read to the jury the portion of the defendant Smith's testimony having to do with his being opposite the root beer stand. After carefully questioning the foreman so as to ascertain exactly that portion of the testimony which the jury desired to hear again, the court permitted the reporter to "play back" a portion of the cross-examination of the defendant Smith as pointed out to the reporter by counsel for the plaintiff. This ground shows that counsel for the plaintiff was called upon by the reporter to assist him in locating the portion of the record which the jury had requested to be played back. After this had occurred and after the testimony had been heard by the jury again, counsel for the defendant trucking company made a motion for mistrial because counsel for the plaintiff had shown the court reporter what to play back.
Whether the trial judge will permit the jury to hear portions of the evidence read by the reporter from his notes or, as apparently was done in this case, permit them to hear it played back from a recording would seem to lie largely within his discretion, and unless this discretion is shown clearly to have been abused, the judge will not be controlled in the exercise thereof. See Jefferson v. State,
5. Complaint is made in special ground 5 of the motion of the court's charge on the last-clear-chance doctrine as applied to the defendant trucking company and its driver, it being contended that the charge was not sound as an abstract principle of law and that the charge was not authorized by the pleadings and the evidence. It is not pointed out in this ground, or in the argument of counsel, how or in what way the charge was unsound as an abstract principle of law. Whether or not this instruction was applicable to the facts of this case (see Atlantic C.L.R. Co. v. Coxwell,
6. John Henry Lumpkin, a witness called by the plaintiff, was permitted to testify, over objection that his testimony was hearsay and not a part of the res gestae, that the witness Gene Stephens told him on the night of the wreck that the defendant Dean was driving his automobile. This conversation with Stephens was had at the funeral home that night some two or three hours after the collision. This witness was also permitted to testify that some six months thereafter he had a conversation with Dean or Stephens with reference to who was operating the automobile and that Dean told him Stephens was driving, and this testimony was objected to by the defendants Smith and the trucking company on the same ground. These objections were overruled and the assignment of error in special ground 11 of the amended motion complains of those rulings.
It is contended in this ground that this testimony was prejudicial to the defendants Smith and the trucking company because it reflected on the character and credibility of Stephens who was later called by those defendants for cross-examination, and for this reason was prejudicial to them. Assuming that the admission of this evidence over the objection of counsel for these defendants was error, the conclusion that it was harmful and prejudicial to those defendants does not logically follow. Stephens was called by the objecting parties for cross-examination under the provisions of Code Ann. 38-1801. Being so called, his testimony was not binding on them and the fact that he was impeached by this evidence which was objected to, if in fact he was impeached by it, could not well have been harmful to them. Furthermore, the matter testified to by the witness Lumpkin and about which complaint is made in this ground of the motion was totally irrelevant to any issue between the plaintiff and the objecting defendants and was almost totally irrelevant to any issue in the case. This testimony related to the issue as to who was driving the defendant Dean's automobile. The plaintiff's petition sought to fix liability on Dean under one of two theories; the first being that Dean himself was driving the automobile and was negligent in the operation of it; and, secondly, that Stephens was driving the automobile with Dean's permission and as his agent and that Dean was liable under the principles of agency for Stephens' negligence in the operation of the car. Assuming proof of other elements of liability Dean would have been liable to the plaintiff under either theory and whichever theory the jury chose to accept in making the verdict against Dean, such choice could in no way affect the jury's findings as to the liability or nonliability of the defendants Smith and the trucking company. The admission of this evidence over the objection of those defendants was, at most, harmless error as to them.
7. In special grounds 6 and 7 error is assigned on the following portions of the charge: "I charge you gentlemen that the defendant, Richard Glenn Smith, contends that when he was within 9 to 10 feet of the Dean automobile that said automobile was across the center line of the highway; however, if you find from the physical evidence, if any, such facts or circumstances which are inconsistent with the truth of the defendant's sworn testimony to that effect, if you find he did so testify, and if you find from the evidence physical facts and circumstances growing out of this transaction that are inconsistent with the sworn testimony of this defendant, then your would have the right to disbelieve his sworn testimony and believe otherwise provided you find such physical facts and circumstances, if any, to be the truth rather than his sworn testimony.
"I charge you that juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable. Great physical laws of the universe are witnesses in each case, which cannot be impeached by man, even though speaking under the sanction of an oath. I charge you that this would apply both to the plaintiff and to all of the defendants in this case and any witnesses that may have testified in this case.
"Therefore, you will look to the evidence in this case if parties or witnesses have testified contrary to the physical laws of the universe and have testified to facts which are incredible, impossible or inherently improbable, you would not be bound to believe these parties or witnesses even though they may be speaking under the sanction of an oath." It is contended that these portions of the charge were not authorized by the evidence because there was no evidence as to physical facts and circumstances which was inconsistent with the sworn testimony of the witnesses. In determining whether these assignments of error are meritorious it is first necessary to define what is meant by "physical evidence" and what is meant by the "great physical laws of the universe." As used in these portions of the charge, "physical evidence" is synonymous with "real evidence." Real evidence is such evidence as is addressed directly to the senses of the court or jury and which speaks to them without the intervention of the testimony of witnesses. 32 CJS 454, Evidence, 601; Kabase v. State, 31 Ala. App. 77 (12 S2d 758, 764); State v. Merritt, 66 Nev. 380 (212 P2d 706, 717); Morse v. State,
For the reasons herein stated, the portions of the charge as complained of in grounds 6 and 7 of the amendment to the motion for a new trial constituted harmful error and the assignment of error thereon will require the reversal of the judgment denying a new trial.
8. None of the other special grounds of the motion for new trial is argued or insisted upon, and they are deemed to have been abandoned by counsel for the plaintiff in error. Since the case may be tried again, it is sufficient to say with respect to the motion for a judgment notwithstanding the verdict and with respect to the general grounds of the motion for new trial, that the evidence did not demand a verdict in favor of the defendants Smith and the trucking company. The court did not, therefore, err in denying the motion for a judgment notwithstanding the verdict and in overruling the general grounds of the motion for new trial.
Judgment reversed. Eberhardt and Russell, JJ., concur.
1962
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