Garrett v. Royal Brothers Co.

Supreme Court of Georgia

Garrett v. Royal Brothers Co.

170 S.E.2d 294, 225 Ga. 533, 1969 Ga. LEXIS 556

CourtSupreme Court of Georgia

DecidedSeptember 8, 1969

Docket25212

StatusPublished

Cited by52 cases

This text of 170 S.E.2d 294 (Garrett v. Royal Brothers Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garrett v. Royal Brothers Co., 170 S.E.2d 294, 225 Ga. 533, 1969 Ga. LEXIS 556 (Ga. 1969).

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Opinions

Nichols, Justice.

The gist of the holding of the Court of Appeals is that the mere striking of a fixed object with an automobile is negligence as a matter of law and the burden of proof of any damages in any way resulting therefrom was not proximately caused by the person operating such vehicle is upon the defendant.

In Barrett v. Mayor &c. of Savannah, 13 Ga. App. 86 (2) (78 SE 827), the Court of Appeals held: “No act can be affirmed to be negligence, as a matter of law, unless it has been made so by statute.” No citation of authority .was given for such statement, for indeed none was needed'when such a well established principle of law was stated.

In Wright v. Ga. R. & Bkg. Co., 34 Ga. 330, 338, it was held: “The judge has no right to determine what constitutes negligence.” And in Central of Ga. R. Co. v. McKinney, 116 Ga. 13 (2) (42 SE 229): “Whether the commission of, or omission to do, particular acts by a railroad company was negligence as to one who has been injured by the running and operation of a train of cars, must, as a general rule, be determined by a jury; and it is error for the judge on the trial of a case brought to recover damages for such injuries, to charge the jury that the omission to do a certain act was negligence, when not expressly made so by the law.” See also Portner Brewing Co. v. Cooper, 116 Ga. 171 (3) (42 SE 408), where it was held: “It is error for a trial judge to instruct the jury that given facts would constitute negligence, when the facts are not such as are made by law to constitute negligence per se.” Such language appears throughout the opinions of this court, and has been applied consistently in cases where diligence and negligence are involved. See Lubeck v. Dotson, 192 Ga. 258, 265 (15 SE2d 205); City of Columbus v. Ogletree, 96 Ga. 177 (22 SE 709).

The plaintiff requested charges reading in part as follows: “If you find Mrs. Garrett was negligent in knocking over the gasoline pump” and “If under the charge I have given you, you [535]*535find that Mrs. Garrett was negligent in knocking over the gasoline pump.” Thus, the plaintiff did not consider that the mere striking of the fixed object (the gasoline pump) was sufficient to charge the defendant with negligence as a matter of law and thus limit the jury to a consideration of whether the proximate cause of the damages was such negligence or whether she was not liable because of an intervening act of negligence sufficient to insulate her from liability.

The defendant testified as to her conduct and the circumstances surrounding the striking of the gasoline pump. This evidence alone was sufficient for the jury to find that her actions were not the result of a failure to exercise ordinary care although such actions may have been a failure to exercise extraordinary care resulting in slight negligence. Ordinary care is the proper measure of conduct of a motorist (see Jackson v. Smith, 56 Ga. App. 763 (194 SE 41)), and a mere failure to exercise extraordinary diligence (amounting to slight negligence) by a motorist would not authorize a recovery by the plaintiff. “Questions of negligence are ordinarily peculiarly within the jury’s province unless the evidence is so plain, palpable and undisputable that a court can conclude that the facts show negligence as a matter of law. Under the facts of this case this court cannot say as a matter of law under the undisputed evidence that the defendant was guilty of negligence as a matter of law.” Dixon v. Dixon, 103 Ga. App. 166 (118 SE2d 713). Accordingly, since the jury would be authorized to find that the defendant was not negligent, or that if she was negligent she was only guilty of slight negligence, the judgment of the Court of Appeals reversing the judgment of the trial court in overruling the plaintiff’s motion for new trial was erroneous.

In view of the above holding other questions presented by the writ of certiorari with reference to proximate cause, intervening proximate cause, etc., need not be considered.

Judgment reversed.

All the Justices concur, except' Grice and Felton, JJ., who diss&nt.

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Nichols, Justice.

The gist of the holding of the Court of Appeals is that the mere striking of a fixed object with an automobile is negligence as a matter of law and the burden of proof of any damages in any way resulting therefrom was not proximately caused by the person operating such vehicle is upon the defendant.

In Barrett v. Mayor &c. of Savannah, 13 Ga. App. 86 (2) (78 SE 827), the Court of Appeals held: “No act can be affirmed to be negligence, as a matter of law, unless it has been made so by statute.” No citation of authority .was given for such statement, for indeed none was needed'when such a well established principle of law was stated.

In Wright v. Ga. R. & Bkg. Co., 34 Ga. 330, 338, it was held: “The judge has no right to determine what constitutes negligence.” And in Central of Ga. R. Co. v. McKinney, 116 Ga. 13 (2) (42 SE 229): “Whether the commission of, or omission to do, particular acts by a railroad company was negligence as to one who has been injured by the running and operation of a train of cars, must, as a general rule, be determined by a jury; and it is error for the judge on the trial of a case brought to recover damages for such injuries, to charge the jury that the omission to do a certain act was negligence, when not expressly made so by the law.” See also Portner Brewing Co. v. Cooper, 116 Ga. 171 (3) (42 SE 408), where it was held: “It is error for a trial judge to instruct the jury that given facts would constitute negligence, when the facts are not such as are made by law to constitute negligence per se.” Such language appears throughout the opinions of this court, and has been applied consistently in cases where diligence and negligence are involved. See Lubeck v. Dotson, 192 Ga. 258, 265 (15 SE2d 205); City of Columbus v. Ogletree, 96 Ga. 177 (22 SE 709).

The plaintiff requested charges reading in part as follows: “If you find Mrs. Garrett was negligent in knocking over the gasoline pump” and “If under the charge I have given you, you [535]*535find that Mrs. Garrett was negligent in knocking over the gasoline pump.” Thus, the plaintiff did not consider that the mere striking of the fixed object (the gasoline pump) was sufficient to charge the defendant with negligence as a matter of law and thus limit the jury to a consideration of whether the proximate cause of the damages was such negligence or whether she was not liable because of an intervening act of negligence sufficient to insulate her from liability.

The defendant testified as to her conduct and the circumstances surrounding the striking of the gasoline pump. This evidence alone was sufficient for the jury to find that her actions were not the result of a failure to exercise ordinary care although such actions may have been a failure to exercise extraordinary care resulting in slight negligence. Ordinary care is the proper measure of conduct of a motorist (see Jackson v. Smith, 56 Ga. App. 763 (194 SE 41)), and a mere failure to exercise extraordinary diligence (amounting to slight negligence) by a motorist would not authorize a recovery by the plaintiff. “Questions of negligence are ordinarily peculiarly within the jury’s province unless the evidence is so plain, palpable and undisputable that a court can conclude that the facts show negligence as a matter of law. Under the facts of this case this court cannot say as a matter of law under the undisputed evidence that the defendant was guilty of negligence as a matter of law.” Dixon v. Dixon, 103 Ga. App. 166 (118 SE2d 713). Accordingly, since the jury would be authorized to find that the defendant was not negligent, or that if she was negligent she was only guilty of slight negligence, the judgment of the Court of Appeals reversing the judgment of the trial court in overruling the plaintiff’s motion for new trial was erroneous.

In view of the above holding other questions presented by the writ of certiorari with reference to proximate cause, intervening proximate cause, etc., need not be considered.

Judgment reversed.

All the Justices concur, except' Grice and Felton, JJ., who diss&nt.

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170 S.E.2d 294, 225 Ga. 533, 1969 Ga. LEXIS 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-royal-brothers-co-ga-1969.

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