Moye v. Reddick

"Wade, C. J. 1. The court did not err in overruling the general demurrer to the plaintiff’s petition; and there is not such merit . in the grounds of the special demurrer as to require a reversal, in [652] the interest of justice, because of any harm to the defendant on account of the alleged defects pointed out thereby. 2. There is no merit in the ground of the motion for a new-trial that the court erred in charging section 5749 of the Civil Code of 1910, relating to the presumption arising where one who has evidence in his power and within his reach, to repel a charge or claim against him, fails to produce it. The defendant herself witnessed the happening, but did not testify at the trial, nor did her chauffeur, who admittedly was in charge of the car under her direction, and who was present at the trial, and must have been in a position to know better than any other person exactly what was done by him to prevent the occurrence, and to know the rate of speed at which the car was moving, and the proximate cause of the injury to the plaintiff. 3. The provision in the act of 1910 (Acts of 1910, p. 90, Park’s Ann. Code, § 828 e), that any person operating an automobile on any of the -highways of this State shall, “upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways [italics ours] . and railroad crossings,” so operate the same as that he may “have it under control and operate it at a speed- not greater than six miles per hour,” is applicable to the public streets of a municipality. “The ‘highways of this State as described in this act’ include all public roads, streets, alleys, etc,; and . . the provisions of section 5, limiting the speed of an automobile at a ‘crossing of intersecting highways,’ would apply to the crossing of intersecting streets, as a street is, by the terms of the act, included as one of the ‘highways’ of this State.” Ware v. Lamar, 16 Ga. App. 560, 566 (85 S. E. 824), s. c. 18 Ga. App. 673 (90 S. E. 364). The court did not err in giving in charge to the jury the provision of the act of 1910 referred to above, as there was some evidence that the defendant’s automobile, when approaching the intersection of another street with the street on which it was being operated, was moving at a high rate of speed, greater than 6 miles per hour, and it appeared, from the testimony, that the automobile struck the plaintiff in the street not far beyond the intersection of these streets; and it was a question for the jury to determine whether the injury resulted from the negligence of the defendant in approaching the crossing at a rate of speed prohibited by law, [653] notwithstanding the place at which the plaintiff was injured was not exactly at the crossing. The plaintiff was not a trespasser, and the various decisions of the Supreme Court and of this court relating to injuries inflicted upon persons trespassing upon a railroad-track not at but near a crossing are not strictly applicable. Besides, the court instructed the jury as follows: “Although you may believe, from the evidence in this case, that Mrs. A. C. Moye' crossed the intersecting streets at the time and place mentioned in plaintiff’s petition, though you may believe from the evidence she was traveling at a rate of speed higher than six miles per hour, yet unless the injury complained of, if any, resulted from the fact that she was going at a greater rate of speed than six miles per hour, or unless you believe that her failure to check the speed of the car down to a rate of six miles per hour, unless such failure to check the speed, if the car was going at a higher rate of speed than six miles per hour, in some way contributed to the injury, tjien that failure could not be counted against her. If the car in which she was. traveling was going at a higher rate of speed than six miles per hour at the time of crossing the street, if that caused the injury or in any way contributed- to the injury, then she would be responsible.” 4. There is no merit in the general grounds of the motion for a new trial, and the court did not err in overruling the motion. Judgment affirmed. George and Luke, JJ., concur.