Reeve Bros. v. Guest

132 F.2d 778, 1943 U.S. App. LEXIS 3966

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 4, 1943
• Docket: Nos. 10356, 10357
• Status: Published

Opinions

SIBLEY, Circuit Judge.

In our previous opinion we applied Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to the records in these cases, as printed. On petition for rehearing it is alleged that objections to the refusal of the court to give the specially requested charges were duly made. We have pursuant to our Rule 23, examined the unprinted portions of the transcripts of the records on appeal and find that there was a colloquy with the judge, omitted in printing, in which such objections were duly made. We will in such circumstances, even on petition for rehearing, consider unprinted matter which ought to have been printed, and so doing here we hold that objections were timely made to the court’s refusal of the requested charges. We therefore proceed to examine such requested charges on the argument already had.

Several of the requests in each case sought to defeat recovery merely because Claire Guest, the driver of the automobile, had obtained her driver’s license by misrepresenting her age and was driving the car while of an age less than the law permitted. These requests were properly refused and charges to the contrary properly given for the reasons and on the authorities stated in the former opinion.

Two requests in each case sought to have the jury instructed that the Georgia statute, which requires the operator of a motor vehicle on a highway to give due warning by his signalling device and reduce speed upon approaching. any sharp curve, dugway, descent or other dangerous place upon such highway, applied to the dugway through which the driver here passed just before the collision, and to the intersection of the private road from which the truck was approaching if the surroundings made it a dangerous place; and that failure to do what the statute required would be negligence per se, and if that negligence caused the collision, there could be no recovery. The judge instructed the jury that the statute was inapplicable because it created a duty only towards people using the highway and not towards persons on a private road, in a field, or other place not a public highway; and that as to the last named persons, the only duty was ordinary care. In so doing, we think the court erred. The statute, copied in the margin,¹ does require in its first clause a warning “to every person riding or driving any horse or horses or horsedrawn or other vehicle, which he may meet or approach”, and this clause may apply only to those already on the highway and in sight when the signal ought to be given, but it was liberally construed to protect pedestrians also in Sprayberry v. Snow, 190 Ga. 723, 727, 10 S.E.2d 179. The second clause requiring signal and reduced speed at curves, dugouts, and dangerous places contains no words which would restrict its protection to persons already on the highway. This clause applies to situations in which there is difficulty in seeing ahead, and is as much needed for the protection of those about to enter the highway as of those already on it. We think persons and vehicles approaching the highway and in the act of entering it are within the statutory protection." A failure' to do what the statute requires is of course negligence per se, but would not be a bar to recovery unless it was the sole cause of the injuries; though as a contributing cause it would operate to reduce the recovery of those persons to whom it ma!y be chargeable; Whatley v. Henry, 65 Ga.App. 668, 16 S.E.2d 214. Verbal criticism may be made of these requests, but they were not refused for such a reason, but because the judge held the statute not applicable. We think we should treat them as sufficient to raise the question of the applicability of the statute and because they were not given or covered by a correct charge, we grant a new trial in all the cases.

Judgment reversed.

1 Georgia Code of 1933, Sect. 68-306: “The operator of a motor vehicle or motorcycle in motion on any public street or highway shall give due and timely warning, by using his signalling apparatus, to every person riding or driving any horse or horses, or horse-drawn or other vehicle, which he may meet or approach; and he shall likewise give due warning and reduce speed upon approaching any sharp curve, dugway, descent or other dangerous place upon such street or highway.”