1. Where there is no evidence whatsoever on the issue of contributory negligence, it is error requiring the grant of a new trial for the trial court to submit such issue to the jury.
2. Where a case is being remanded for another trial such errors as are not likely to recur on the new trial will not be considered.
On the evening of September 11, 1952, at about dusk, the plaintiff and her husband left their home and started walking along the highway going east, in order to visit their son, who lives on the north side of the highway about one mile east of the plaintiff's house, and because the grass on the north side was wet and the shoulder of the south side of the highway was more adaptable for walking, the plaintiff and her husband crossed to the south shoulder and began walking in the direction of their son's house. Her husband walked nearer the paved portion of the highway, and the plaintiff was walking to the south of him. While they were walking along the path on the south shoulder, a red International truck and trailer, owned by the defendants, and driven by Theodorus Blue, came down the long hill from the west at a reckless, excessive, and unlawful speed of 50 miles per hour, and in attempting to round the curve in front of the plaintiff's house, the truck swung wide to the outside of the curve to such an extent that some part of the truck and trailer, or the load thereon, the exact part being unknown to the plaintiff, extended far beyond the paved portion of the highway and struck the plaintiff's husband as he walked along the path on the shoulder of the highway. The blow knocked her husband off his feet and caused injuries to his back and the back of his head, from which he died on October 7, 1952, and the injuries so occasioned were the immediate and proximate cause of his death.
After striking the plaintiff's husband, the truck and trailer swerved back toward the center line of the highway and continued at an unabated speed in an easterly direction down the highway.
At the point where the vehicle struck her husband, the paved portion of the highway is 20 feet wide, and the top portion of the shoulder of the highway which formed the path on which the plaintiff and her husband were walking is nine feet wide. At the time the plaintiff's husband was struck, there was no other traffic of any kind in sight, either going or coming, and the highway was clear of any obstructions of any kind. At the time the plaintiff's husband was struck by the defendant's truck, he was walking along the path on the south shoulder of the highway in such manner that the part of his body nearest the paved portion of the highway (to his left) was 30 inches away from the paved portion and the plaintiff was walking beside him on the side away from the paved portion of the highway. The plaintiff and her husband heard the approach of the truck and saw the beams from its headlights shortly before it struck her husband; but feeling secure in the knowledge that the highway was clear of traffic and the fact that they were well off the paved portion of the highway, they continued to walk in the same relative positions to the highway, having no reason to suspect that the driver of the truck would drive off the paved portion of the highway and unto the shoulder where they were walking. There was nothing to obstruct the driver's view of the plaintiff and her husband once he had started around the curve some 350 yards to the west of the plaintiff and her husband; and though the plaintiff's husband was struck at about dusk, the driver had the headlights of the truck burning and clearly saw, or could have seen, the plaintiff and her husband if he had been in the exercise of ordinary care. Never at any time did the driver of the vehicle sound the horn or sound any warning of his approach or indicate that the truck was out of control and about to run off the highway onto the shoulder on which the plaintiff and her husband were walking. In approaching the intersection of the highway with the aforementioned country road, which intersection is located 110 yards west of the point at which the plaintiff's husband was struck, the driver of the truck failed to reduce his speed, and the intersection is frequently used by the farmers of the neighborhood in entering and leaving the highway. In approaching and traveling around the curve in question, the driver of the truck failed to reduce his speed but continued at the rapid and excessive speed of 50 miles per hour. At the time when the truck struck the plaintiff's husband, it was loaded with bales of cotton in such fashion that the bales extended beyond the sides of the trailer so that the over-all width of the vehicle and its load exceeded 96 inches. The vehicle was equipped with pneumatic tires, and the gross weight of the load and the vehicle was in excess of 16,000 pounds. At the time the plaintiff's husband was struck by the truck, the driver of the truck was in the employment of the defendants and was acting within the scope of that employment. The defendants are cotton buyers and have their place of business in Fitzgerald, Georgia. Theodorus Blue, the driver of the truck in question,
was employed by the defendants to haul cotton, and often, prior to the time the plaintiff's husband was struck by the truck, he made hauls between the defendant's place of business and the cotton warehouses located in Sycamore and Ashburn, Georgia; and, in hauling between these points, he had to travel over the highway in question and was familiar with the highway at the point at which the plaintiff's husband was struck. He knew of the existence of the intersection of the highway and the country road and knew of the existence of the curve. He knew there were no sidewalks in this vicinity and he knew of the custom of pedestrians to use the pathway on the south shoulder of the highway.
The death of the plaintiff's husband and the resulting damage to the plaintiff in a named amount were directly and proximately caused by the following acts of negligence on the part of the defendants, acting by and through their employee, Theodorus Blue, while he was acting within the scope of his employment: (a) in driving the truck at a speed in excess of 35 miles per hour in violation of the laws of Georgia, which was negligence per se; (b) in driving the truck down the long hill, across the intersection and around the curve at the excessive and unlawfully rapid rate of speed of 50 miles per hour, which was faster than was reasonable and safe with regard to the width, grade, and character of the highway and the use to which the south shoulder was put, in violation of the law of Georgia, which was negligence per se; (c) in operating the truck upon a public highway of the State when the outside width of the vehicle, including the load thereon, exceeded 96 inches in violation of the law of Georgia, which was negligence per se; (d) in failing to reduce the speed of the truck in rounding the curve, in violation of the laws of the State, which was negligence per se; (e) in failing to reduce the speed of the truck as it approached the intersection of the highway with the country road, in violation of the laws of the State, which was negligence per se; (f) in failing to have the truck under immediate control while passing a person traveling on the highway, in violation of the laws of the State, which was negligence per se; (g) in failing to sound a warning by blowing the horn of the truck when passing a pedestrian traveling in the same direction on the highway, in violation of the laws of the State, which was negligence per se; (h) in driving the truck off the paved portion of the highway, when there was no other traffic in sight, and onto the shoulder of the highway where the plaintiff and her husband were walking; (i) in driving the truck off the paved portion of the highway onto the shoulder of the highway and into the plaintiff's husband, whom he saw, or could have seen in the exercise of ordinary care; (j) in driving the truck off the paved portion of the highway and onto the south shoulder of the highway, when he knew that there were no sidewalks and when he knew of the custom of pedestrians to walk on the south shoulder and when he knew of the likelihood that there would be pedestrians walking on the shoulder of the highway at that point.
Upon the trial of the case, the jury returned the following verdict: "(Both parties equally responsible) We the jury find the verdict in favor of the defendant."
The plaintiff's motion for a new trial, based on the usual general grounds and four special grounds, was denied, and she has brought the present writ of error to have that judgment reviewed.
1. Two of the four special grounds of the plaintiff's motion for a new trial assign error on the trial court's instructing the jury on the law of contributory negligence, when such negligence was not made an issue in the case in any manner whatsoever.
"While contributory negligence is an affirmative defense and must be pleaded unless affirmatively shown by the allegations of the petition (Watts v. Colonial Stages Co., 45 Ga. App. 115, 119, 163 S. E. 523; Woolworth Co. v. Wood, 32 Ga. App. 575 (2), 124 S. E. 110; Fuller v. Louis Steyerman & Sons, Inc., 46 Ga. App. 830 (2), 169 S. E. 508); and while there is no necessity that the plaintiff negative such negligence (Hardwick v. Figgers, 26 Ga. App. 494 (2), 106 S. E. 738; Sims v. Martin, 33 Ga. App. 486 (8), 126 S. E. 872; Pollard v. Hagan, 60 Ga. App. 581, 583, 4 S. E. 2d 477), yet, where the plaintiff nevertheless pleads the lack of contributory negligence, a denial of such allegations will raise the issue of such negligence. Western & Atlantic Railroad v. Mathis, 63 Ga. App. 172, 175 (10 S. E. 2d 457)." Whatley v. Henry, 65 Ga. App 668, 675 (16 S. E. 2d 214). It has also been said by the Supreme Court in Kelly v. Locke, 186 Ga. 620, 630 (198 S. E. 754), in discussing whether or not the issue of contributory negligence was raised by the pleadings, that, "under the defendants' general denial that their own negligence was the proximate cause of the [plaintiff's] injuries, it was permissible to show that the plaintiff's injuries were caused by anything else," and there was evidence in that case from which the jury was authorized to infer the plaintiff's contributory negligence. And the general rule stated in Rocker v. DeLoach, 178 Ga. 480 (173 S. E. 709), would seem to be equally applicable to the issue of contributory negligence: "A charge of the court, if based upon evidence admitted without objection, may be necessary, and is not necessarily erroneous, although in looking strictly to the pleadings there may be nothing in the pleadings with reference to the evidence actually adduced upon the trial. The test which may generally be applied is whether the pleading could have been so amended as to relate to the evidence introduced. During the trial of a case the pleadings can not be so amended as to set forth a new and distinct cause of action; but where the evidence introduced is pertinent to the issue on trial, and relates to the same subject matter and the same cause of action, so that the pleadings may be amended, he who would complain that the law as delivered by the court is not adjusted to the pleadings waives the right by failing to object to the introduction of the testimony when it is presented or by moving to rule it out if it has been already introduced."
In the present case, the plaintiff's contributory negligence was not pleaded, nor does it affirmatively appear from the allegations of the petition. The plaintiff, by none of her averments, sought to negative her husband's negligence; and, while, under the rule stated in Kelly v. Locke, supra, the issue of contributory negligence may be said to have been raised by the defendant's general denial of the plaintiff's allegations; and, while, under the rule stated in Rocker v. DeLoach, supra, a charge on contributory negligence would have been authorized had there been evidence of such negligence introduced upon the trial--under the view which we take of the evidence the issue of contributory negligence was not directly or inferentially raised. While the fact that it was the defendants' truck which struck the plaintiff's husband depended entirely upon circumstantial evidence, that fact was readily inferable from all the evidence on the subject; and, when the plaintiff's testimony is coupled with the admissions of the defendants' driver, every material allegation of the plaintiff's petition was substantially established without the slightest intimation of negligence on the part of her husband. The trial court, consequently, erred in submitting the issue of contributory negligence to the jury. Western & Atlantic R. Co. v. Branan, 123 Ga. 692 (51 S. E. 650); Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (170 S. E. 493).
2. The alleged errors assigned in the two remaining special grounds of the motion for new trial, if error, are such as are not likely to recur on another trial, and neither those two special grounds nor the general grounds need be considered at this time.
The trial court erred in denying the motion for a new trial for the reasons stated in division 1 of this opinion.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.