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Action for damages. Fulton Superior Court. Before Judge Pharr.
1. The general grounds of the motion for new trial are without merit.
2. Failure to charge that the negligence, if any, of a host driver is not imputable to a guest in the car, no request having been made for the charge, is not error when there was no contention or issue in the case of any imputability.
3. It is not a good ground of a motion for new trial that the court, after giving one correct and applicable principle of law in the charge to the jury, failed to give another in connection therewith which was not requested.
4. Excerpts from the charge to the effect that, if the plaintiff's injuries would have occurred regardless of the alleged acts of negligence on the part of the defendants, the mere happening of the event alone does not authorize an inference of negligence, and that plaintiff must prove her case as laid and in order to impose liability on the defendants the jury must find that their negligence was the natural and proximate cause of plaintiff's injuries, are not subject to the construction that the court was charging on the theory of accident. This is particularly true in a consideration of the charge as a whole.
5. It is not error to fail to submit as contentions of the plaintiffs allegations or specifications of negligence which are unsupported by any evidence.
Virginia Pritchett brought suit against Textile Trucking Company and Wayne Higgins, a driver of one of the company's trucks, seeking recovery of damages for injuries alleged to have been sustained when the truck struck a car in which she was a guest, operated by John Henry Settles, at the intersection of Northside Drive and McDaniel Street in Atlanta. She alleged that the Settles car was traveling south on Northside Drive, a street with three lanes of traffic in each direction, and that the driver came to a stop when he reached the McDaniel Street intersection, waited for traffic to clear, then turned left into McDaniel Street, and that just as he turned, defendants' truck traveling north on Northside Drive struck the car, causing her to be thrown out into the street and injured. She alleged that the truck went through a red light at the intersection, was traveling at a fast and reckless speed, in excess of the 35 mile per hour applicable speed limit at that point, and that the driver did not have it under proper and adequate control.
Defendants denied all allegations of the petition, save those which were jurisdictional, and by amendment asserted that the sole proximate cause of plaintiff's injuries was the negligence of her host driver in failing to observe the applicable ordinance for the making of left turns on the streets of Atlanta.
The jury returned a verdict for the defendants, and to the overruling of her amended motion for new trial plaintiff excepts.
1. The general grounds of the motion are without merit. There was ample evidence to support the verdict.
2. In special ground 4 of the amended motion error is assigned upon the failure of the court to charge, without request, that the negligence of the host driver, if any, was not imputable to the plaintiff who was a guest in the car. Imputability of the negligence of the host driver to a guest was not an issue in this case. It was not made by any pleading or evidence. Defendants made no contention of imputability; rather they contended that the sole proximate cause of plaintiff's injuries was the negligence of the host driver. On that issue the court gave a full and fair charge. "The trial judge is not required to charge provisions of law about which there is no issue, especially when the entire charge so fully and fairly presents the real issue in controversy as to leave no reasonable ground for apprehending that the jury did not understand the law of the case." Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330 (3) (155 SE 321). "Failure of the trial judge to give a particular instruction to the jury, which the losing party, in his motion for new trial, contends should have been given, is not cause for a new trial, even if such instruction would have been abstractly correct, if neither the pleadings nor the evidence in the case required it to be submitted to the jury." Friedman v. Goodman, 124 Ga. 532 (2) (52 SE 892).
3. In special ground 5 error is assigned upon the failure of the court, without request, to charge that the negligence, if any, of the host driver was not imputable to the guest, in connection with a charge that in order to find a verdict against the defendants they must find that they were negligent in some respect charged in the petition and that their negligence was the proximate cause or concurred in being the proximate cause of plaintiff's injuries. "It has been repeatedly held by both this court and by the Supreme Court that an instruction correct in and of itself is not rendered erroneous by the mere failure of the trial court to give in connection therewith also another pertinent and legal instruction." Burton & Class v. Connell, 84 Ga. App. 106, 109 (2) (65 SE2d 620). Thus, even if the pleadings or the evidence had sufficiently raised the issue of imputability to render a charge on that principle pertinent, no error is shown by this assignment.
4. Headnote 4 needs no elaboration.
And "when the light turned green I observed the truck. It was, I imagine, about 50 or 75 feet up Northside Drive coming down the hill. [The light] was green on McDaniel Street. I had the green light, you see I was going across. I started to cross but I stopped. I saw the truck driving so fast I just stopped. This other car started across." His further testimony as to the truck speed was: "Q. Did you have opportunity to observe the truck in motion? A. Yes, sir, I saw it coming down the hill, you. know, driving about 35 or 40 miles an hour. Q. Just a minute. Do you drive an automobile yourself? A. Yes, sir. Q. How long have you been driving an automobile? A. Twenty-five or twenty years. Q. Based on your experience and observation do you have an opinion as to what the speed of the truck was as it approached the intersection? A. It slowed up a little bit just before it got there and he got a little faster when he got to the corner. Q. Do you have an opinion as to what the speed of the truck was? A. No, around about 35 miles an hour I imagine."
Thus the first estimate of the witness as to the truck's speed of "about 35 or 40 miles an hour," was qualified by the subsequent answer to "around about 35 miles an hour" which is within the permissible limit.
Moreover, his answer of "No, around about 35 miles an hour I imagine" carries the connotation that he really had no opinion as to the truck's speed and that his estimate was at best a matter of speculation and conjecture. An "imagined" speed is pure surmise, upon which a verdict should not be based.
"The testimony that a line might be 'imagined' to be projected back to the center line was mere speculation, hence not sufficient to show that the truck had actually been across the line." Bartell v. Del Cook Lbr. Co., 108 Ga. App. 592, 601 (133 SE2d 903). "[I]f it appears from [the witness'] own testimony that [he] is merely surmising . . . it should be excluded . . . English v. Georgia Power Co., 66 Ga. App. 363, 368 (17 SE2d 891). And see Sanders v. Chandler, 71 Ga. App. 337, 338 (1) (30 SE2d 813). "Findings of fact based on mere conjecture can not be upheld." U. S. Fidelity &c. Co. v. Brown, 68 Ga. App. 706 (3) (23 SE2d 443). "[M]ere conjecture does not constitute evidence upon which . . . findings may be based." Globe. Indem. Co. v. Brooks, 84 Ga. App. 687, 688 (67 SE2d 176). "[W]here evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict." Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103). See also Rivers v. State, 118 Ga. 42, 44 (44 SE 859); Bentley v. Southern R. Co., 52 Ga. App. 188, 190 (182 SE 815); Bartell v. Del Cook Lbr. Co., 108 Ga. App. 592, 601, supra. "There is nothing more unreliable than mere opinions and estimates of time and distance." Augusta Southern R. Co. v. Carroll, 7 Ga. App. 138, 139 (66 SE 403). Since it appears that the only evidence as to the speed of the truck was a surmise or speculation, there was a failure to prove this specification of negligence, and it was not error to fail to submit it to the jury. It would not have supported a verdict.
6. It is urged in special ground 8 that the failure of the court to submit the issue of whether there had been negligence on the part of defendants by reason of a violation of the speed ordinance, as contended in that specification of negligence in the amended petition, amounted to an expression of opinion on the part of the court. We do not agree. Certainly the judge did not instruct the jury that there was no negligence on the defendant's part in this respect, as was done in Graham v. Malone, 105 Ga. App. 863 (126 SE2d 272), but on the contrary simply stated that he was not submitting subparagraph F of paragraph 10 of the petition. He made no comment as to what had or had not been proven by the evidence, though he might have said to the jury that there was no evidence to support that specification of negligence, for it was true. East Tenn. &c. Co. v. Markens, 88 Ga. 60, 61 (13 SE 855, 14 LRA 281); Shields v. Georgia R. &c. Co., 1 Ga. App. 172, 173 (57 SE 980).
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.
A. Ed Lane, contra.
Eugene O'Brien, D. Gerald Ricci, for plaintiff in error.
SUBMITTED MAY 4, 1965 -- DECIDED MAY 20, 1965.
Friday May 22 21:11 EDT

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