The trial judge erred in denying the motion for new trial.
Inez Butler filed a suit against Joseph Charles Kane for the alleged negligent homicide of Louise Butler, the five-year-old daughter of Inez Butler.
The petition as amended alleged in substance that: in the late afternoon of June 11, 1956, at about 6 p.m., the defendant, while driving a 1955 Chevrolet sedan with 1956 Florida license No. 1-58540, at a high and negligent rate of speed in excess of 60 miles per hour in a residence district approximately two-tenths of a mile north of the city limits of the City of Culloden, Monroe County, Georgia on U. S. Highway No. 341, and while failing to keep a proper lookout ahead, and without any warning, did drive the vehicle into Louise Butler, inflicting fatal injuries on her; that negligence of the defendant was the proximate cause of the death of Louise Butler, and the defendant was negligent in the following particulars: in driving the automobile at a high and negligent rate of speed in excess of 60 miles per hour; in driving the vehicle in a residence district in excess of 35 miles per hour in violation of Code (Ann.) 68-1626 (b) 1, which is negligence per se; in failing as herein alleged, to keep a proper lookout to observe Louise Butler; in failing to give any warning at the time and place; in driving the vehicle into Louise Butler causing her death; in failing, after observing a child of tender years on the roadway, when by the exercise of ordinary care and diligence he could have observed her on the roadway, to exercise due care and proper precaution to avoid colliding with Louise Butler, in violation of Code (Ann.) 68-1658, which is negligence per se; at the time and place the defendant was driving southerly on the highway and at the place the highway was smooth asphalt, straight, and the road was going down a slight decline, and was approximately 50 feet wide with asphalt center portion 21 feet wide; at the time and place the defendant upon observing the child, Louise Butler, or by the exercise of ordinary care and diligence could have seen the child upon the roadway, failed to exercise due care and failed to exercise proper precaution to avoid colliding with the child; at the time and place file defendant was driving his automobile approximately 65 miles per hour; that Louise Butler was struck on the extreme right-hand side of the paved portion of the highway by the right-hand side of the car driven by the defendant.
The defendant filed his answer in which he denied the material allegations of the plaintiff's petition and alleged that he could not by the exercise of ordinary care have avoided colliding with the deceased.
On the trial the defendant testified in part that: he was driving his automobile just north of Culloden when he saw three children playing in a driveway to a house which was on the left; he first observed the children at a distance of three to four hundred feet; they appeared to be about six years old; he did not blow his horn; he was driving between 55 and 60 miles per hour; he applied his brakes in a "pumping fashion"; as he approached the children the deceased "whirled" and ran across the road in front of his automobile; he was "a little better than two car lengths" from the deceased when she started across the road; he did not know what speed he was traveling when the deceased was starting across the road; he could not turn to the left to avoid hitting the deceased because another automobile was meeting him at that time; he did not know how much he slacked his speed after seeing the children, but he "slackened" enough to feel safe to continue along the highway; he saw the children at all times.
Trooper Ray testified in part: that the skid marks of the defendant's automobile were 165 feet in length; the approximate speed of the defendant's automobile was 50 to 60 miles per hour as shown by the tire marks.
Doris Dean testified in part: that she observed the deceased killed; she was driving an automobile on the highway at approximately 50 to 55 miles per hour; she observed some colored children at a distance of two or three hundred feet playing about five feet off the pavement; she observed the defendant's automobile coming from the opposite direction; he appeared to be traveling at approximately the same speed she was; as she approached the children the deceased turned and ran in front of her automobile; she applied the brakes and missed hitting the deceased; the defendant's automobile was even with her automobile when lie struck the deceased.
The jury returned a verdict for the defendant. The plaintiff filed a motion for new trial which was denied, and she excepts.
1. Special ground 5 of the amended motion for new trial assigns as error the following charge: "The plaintiff is entitled to recover if she proves to your satisfaction under the rules of law I give you in charge that the defendant was negligent as alleged in her petition as amended, and that her decedent was injured and death resulted from said injuries, and those injuries were sustained as the proximate result of said negligence." In Everett v. Clegg, 213 Ga. 168
, 170 (97 S. E. 2d 689) it was held: "The Court of Appeals held that the following charge of the court: 'The plaintiff is entitled to recover if he proves to your satisfaction under the rules of law given you in charge that the defendant was negligent as alleged in his petition, and that he was injured and damaged as a proximate result thereof' was not error, over the contention that it led the jury to believe that, before the plaintiff could recover, he must
524 BUTLER v. KANE. (96 Ga
prove that the defendant was negligent in each of the several ways alleged in the petition. It was held that this charge did not violate the rule that, although the plaintiff may allege several acts of negligence, proof of all such acts is not required, and a recovery will be sustained upon proof of any one or more of such acts.
"This charge was erroneous and injurious to the plaintiff for the reason that, in effect, the jury were told that the burden was upon the plaintiff to prove all of the allegations of negligence in his petition before they would be authorized to return a verdict in his favor. See Harrison v. League, 93 Ga. App. 718
, 720 (92 S. E. 2d 595)."
The instructions excepted to in the present case being almost identical with the charge in the Everett case, the trial judge erred in placing the burden on the plaintiff to prove all the allegations of negligence in her petition.
The defendant insists the above error was cured by other instructions which gave the proper statement of the law as to this burden. With this contention we do not agree. While it is true that, in other parts of the charge, the trial judge properly instructed the jury as to this principle of law, he did not expressly withdraw the incorrect charge from their consideration. The jury should not be left to determine which of these instructions was correct. "A charge containing two distinct propositions conflicting one with the other is calculated to leave the jury in such confused condition of mind that they cannot render an intelligent verdict. Such requires the grant of a new trial. Morris v. Warlick, 118 Ga. 421 (45 S. E. 407); Savannah Electric Co. v. McClelland, 128 Ga. 87 (57 S. E. 91); Grooms v. Grooms, 141 Ga. 478 (81 S. E. 210); Tietjen v. Meldrim, 169 Ga. 678 (151 S. E. 349)." Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131, 146 (194 S. E. 536).
2. Ground 1 of the motion complains of the admission of evidence, but no legal objection was made to its introduction. Hence the ground is without merit.
3. Special ground 8 of the motion complains of the following charge: "I charge you that you cannot base a verdict in this case upon sympathy for either party or prejudice against either party. Any verdict you return must be supported by evidence produced upon the trial without being affected in any way by either sympathy or prejudice."
Cautionary instructions are not favored since in most instances they are productive of confusion and tend to restrict the jury's untrammeled consideration of the case. There are instances in which charges of that nature are approved. Atlantic & B. Ry. Co. v. Bowen, 125 Ga. 460 (3) (54 S. E. 105); Bass v. African Methodist Episcopal Church, 155 Ga. 57 (3) (116 S. E. 816). In this case there is nothing in the record that necessitated such instructions; however, in argument before this court the uncontradicted statement was made that the plaintiff's counsel in his argument before the jury made remarks characterizing the defendant as a New York Jew. This tended to inject prejudice into the case and rendered the charge complained of appropriate.
4. The plaintiff's motion for new trial assigned error on other parts of the charge than those we have discussed, and these grounds are without merit.
5. The evidence, which would have amply supported a verdict for the plaintiff, was not conclusive as to issues of whether the defendant was negligent in the particulars alleged in the petition and as to whether his negligence was the proximate cause of the collision fatal to the plaintiff's child. The verdict was not without evidence to support it, nor were there other errors of law that authorize the grant of a new trial on the general grounds.
Judgment reversed. Felton, C. J., and Nichols, J., concur.