1. The general grounds of the motion for a new trial are without merit.
2. The elimination of one of the allegations of negligence in the petition by the trial judge in his charge to the jury was an expression of the judge's opinion as to what had or had not been proved, and under the provisions of Code 81-1104 the decision must be reversed and the motion for a new trial granted, regardless of the fact that the verdict and judgment were in favor of movant.
Mrs. Ruth Graham filed a petition in Fulton Superior Court against William S. Malone, Jr., and William R. Bentley, Jr., partners d/b/a Custom Craft Seat Cover Company, seeking $20,000 damages for alleged personal injuries. The petition alleged substantially as follows: On September 11, 1957, the plaintiff, driving her husband's automobile in a southerly direction on West Peachtree Street "near" the City of Atlanta, stopped for a red light at the North Avenue intersection. As she started forward with the green light, a sedan automobile, with a motorcycle hitched onto the rear end and driven by an agent and servant of the defendants, ran into the rear end of the automobile driven by the plaintiff. The force of the collision jolted the plaintiff which resulted in enumerated injuries.
The allegations of the defendants' negligence were as follows: Not having the automobile which the agent-servant was driving under control; " not applying the brakes of the said sedan automobile in time to avoid running into the rear end of the automobile being operated by plaintiff" (emphasis supplied); not keeping a proper lookout ahead and observing the automobile plaintiff was driving being stopped and being in the process of resuming forward motion; and in not directing the movement of the said sedan automobile around the right or left side of the automobile plaintiff was driving in such a manner as to avoid running into and against the said automobile being driven by plaintiff.
The plaintiff testified that after the collision she had asked the defendant's driver what had happened, to which he had replied, "I am very sorry. I had grease on my foot or on the brake and I was unable to stop."
The jury rendered a verdict of $2,000 for the plaintiff. The plaintiff's motion for a new trial alleged as error, in addition to the general grounds, portions of the charge to the jury.
Special ground No. 1 attacks as violative of Code 81-1104 the following portions of the charge: "One of the alleged grounds of negligence is that the alleged agent and servant was negligent in not applying the brakes of the sedan automobile in time to avoid running into the rear of the automobile being operated by plaintiff. The court charges you there is no negligence in the case in that the defendant's agent and servant did not apply the brakes. The remaining allegations of negligence are before you for consideration under the evidence in the case. The allegation in respect of application of brakes you will not consider in passing on the case . . . If you believe that the defendants were guilty of one or more acts of negligence charged in plaintiff's petition, with the exception of the one that has been eliminated by the charge of the court . . . ," etc. "Gentlemen, if, after considering all of the evidence in the case and applying the principles of law given you in charge, you find that the defendants were guilty of negligence in one or more of the particulars or grounds of negligence charged in the plaintiff's petition, excepting therefrom the allegations of negligence in respect of not applying the brakes, and that such negligence of the defendants, if you so find, was the proximate cause of the plaintiff's injuries, if she was injured, then the plaintiff would be entitled to recover against the defendants." (Emphasis supplied).
Special ground No. 2 assigns error on the court's failure to charge the jury that if they found that the defendants were negligent in failing to apply the brakes in time to avoid running into the rear end of the automobile operated by the plaintiff, and that such negligence was the proximate cause of the plaintiff's injuries, if any, then the plaintiff would be entitled to recover against the defendants.
The court overruled the plaintiff's motion for a new trial, to which judgment he excepts.
1. The general grounds of the plaintiff in error's motion for a new trial are without merit and were properly overruled.
2. Special ground No. 1 is meritorious and the court erred in overruling it. Code 81-1104 provides: "It is error for any judge of a superior court, in any case, whether civil or criminal or in equity, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and should any judge of said court violate the provisions of this section, such violation shall be held by the Supreme Court or Court of Appeals to be error, and the decision in such case reversed, and a new trial granted in the court below, with such directions as the said Supreme Court or Court of Appeals may lawfully give." The excerpts from the charge, which are quoted above, indicate that the court attempted to withdraw from the consideration of the jury one of the allegations of the defendants' negligence, namely: that the defendants' agent did not apply his brakes in time to avoid running into the automobile driven by the plaintiff. This was a clear expression of an opinion upon the meaning and weight of the evidence. It determines judicially a question of fact which should have been left to the jury. Whether the statement of the defendants' agent meant that there was grease on his foot or on the brake pedal or on the brake lining was a jury question at least. The circumstances do not present a situation where circumstantial evidence points with equal consistency to two opposing theories in which event nothing would be proved as to the issue involved. The statement meant only one thing and what that was was a jury question. This court has no discretion in this matter, but is bound to reverse the judgment, in case of such error. Headman v. Rose, 63 Ga. 458
, 466. It has been held that whether the expression or intimation of an opinion was supported by the evidence or not, and whether in fact it was injurious to the party or not; and even though it was wholly unintended, and though the verdict be what it ought to be, so that substantial justice has been done, the result is the same. "The only question for us to consider is, did the judge express or intimate an opinion, as to what had or had not been proved. If so, a new trial must be granted." Phillips v. Williams, 39 Ga. 597
, 603; Bohler v. Owens, 60 Ga. 185
, 186 (3); Sanders v. Nicholson, 101 Ga. 739 (3) (28 SE 976)
; Bland v. State, 211 Ga. 178
, 183 (84 SE2d 369
). What is said above covers the second ground of the amended motion.
Although the plaintiff obtained a verdict and a judgment in her favor, under the authorities cited in division 2, supra, a new trial must be granted, since it has been determined that the judge expressed an opinion in his charge as to what had or had not been proved, in violation of the provisions of Code 81-1104.
The court erred in overruling the motion for a new trial.
Judgment reversed. Bell and Hall, JJ., concur.