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Damages. Before Judge Parker. Fulton Civil Court. July 30, 1954.
The evidence supported the verdict, and no reversible error appears from the record.
Jocie Motor Lines, Inc., sued Allied Egg & Poultry Company and Clary P. Strong for damages allegedly caused by the defendants' negligence. The damage sued for resulted from a collision between the plaintiff's truck and a truck being driven by the defendant Strong, who was alleged to be the agent of Allied Egg & Poultry Company and who was allegedly acting within the scope of his employment at the time of the collision. The jury returned a verdict for the plaintiff against both defendants. The defendants separately moved for new trials on general and special grounds. The motions were denied, and the defendants except separately.
On the night of March 9, 1953, at approximately 9:30 p. m., the defendant Strong was driving a 1950 International-Harvester truck tractor along U. S. Highway No. 78 traveling from Atlanta to Lawrenceville, Georgia. As Strong approached the Yellow River bridge some three to five miles east of Stone Mountain, Georgia, the lights on his tractor suddenly and without warning went out, and the tractor's motor quit operating. Strong braked the vehicle to a stop as soon as he could safely do so. Having passed the plaintiff's tractor-trailer a mile or so back up the road and knowing that said vehicle was traveling behind him, Strong looked out his rear window and saw the lights of the plaintiff's vehicle approaching him from the rear. He immediately grabbed his flashlight, opened the cab door, and stood on the runningboard of the tractor and waved his flashlight back and forth in an effort to signal the plaintiff's driver. Upon seeing that the plaintiff's vehicle could not or would not stop, he immediately reentered the cab and closed the door, and thereupon his tractor was struck in the left rear by the plaintiff's vehicle. Strong did not realize that he had come to a stop on the Yellow River bridge until he was signaling with his flashlight, it being very dark and there being no lights around. A later inspection disclosed that a battery cable on the truck operated by Strong had burned or broken in two. The evidence disclosed that the cable had burned or broken at the battery terminal end of the cable, and that some inches from that end of the cable and near the middle of the cable from end to end, the cable's insulation and wiring had frayed. It is contended by the plaintiff that this frayed part of the cable became grounded against the metal frame of the tractor, which caused a short in the electrical circuit of the cable, and that the short caused the cable to burn or break, or caused the lead solder which bound the cable to the terminal to melt so that the cable pulled out of the terminal.
W. R. Ramy, an expert witness testifying for the plaintiff, testified on direct examination as follows: "Q. Your name is W. R. Ramy? A. Yes, sir. Q. What is your business? A. Automobile-truck damage, physical appraiser. Q. How long have you been engaged in that business in and around Atlanta? A. On my own, in my name? Q. Yes, sir. A. Five years. Q. And before that, I take it you have been in the business for others, is that right? A. Yes, sir. Q. In the course of the time you have been in the business, have you made numerous investigations and appraisals of physical damage to automobiles and trucks? A. Yes, sir. Q. How many would you say you had made? A. Approximately 1,800 a year personally. Q. On March--somewhere between March 9th and March 16th of 1953, did you make an investigation or an inspection and appraisal of the damage done to an International Harvester tractor that had a Georgia license AH 8236 on it? A. Yes, sir. Q. Where did you make that inspection, sir? A. The International Harvester Company, Whitehall Street, Atlanta. Q. Was that, or not, the tractor that was damaged in the collision out at the river at Possum Lake, or do you know? A. That I don't know. Q. Where was the damage to the truck generally, tractor? A. The left rear corner from behind. Q. Did you notice anything about a battery cable on the tractor? A. Yes, sir. Q. Was it hanging loose? A. Yes, sir. Q. Here is a new battery cable; was the cable about this long, the same type of cable as this or not? A. It was longer than that and about the same type, yes, sir. Q. Did you inspect that battery cable closely? A. Yes, sir. Q. What did you notice about the battery cable with regard to whether or not it was connected at both ends or whether it was disconnected somewhere? A. I believe the part you have here, this had been burned in two and had been rubbed in two at this point. Q. Where it had been rubbed, was the metal exposed? A. Yes, sir. Q. You said it had been rubbed, was it up against anything? A. Yes, sir; the metal area was against the frame of the truck. Q. Is the truck frame made of metal? A. Yes, sir. Q. How long would it take for that sort of rubbing to rub through there, could that be done in a day or two or does it take some period of time? A. It takes time to do that. Q. Would you say it takes as much as a month or two? A. That's just a guess; I believe certainly that long or longer. Just a guess. Q. When the insulation on the cable rubs through there, you get metal with a charge of electricity up against the metal of the
frame; is that right? A. Yes, sir. This was the, as we call it, the positive cable. Q. Sometimes called the 'hot side'? A. Hot side, yes, sir. Q. What is the effect when the positive, or the hot, cable comes in contact with the frame of a truck like that, does it short out? A. With the proper conditions, it is a direct short, very hot. Q. As a result of a direct short, does that generate heat? A. Yes, sir. Q. Did you, or did you not, observe that the solder of the connection with the cable going into the terminal appeared to be melted? A. Yes, sir; it was melted in the wire area outside of this bracket. In other words, part of the wire was still in the bracket but it apparently had melted away from the bracket. Q. Assume this state of facts. Assume that an International Harvester truck of the character that you were inspecting was driving down the road at night and coming down a hill and approaching a bridge and that suddenly the lights went out on that tractor and the engine stopped and subsequently there was a collision where one truck ran into the left rear of the vehicle, the tractor which had stopped and its lights had gone out and its engine had gone off; and on inspection of that vehicle a few days later you find the battery cable frayed and frayed where it had rubbed against the frame of a truck and you find that the battery cable itself, where it fits into the terminal, the solder had melted and the cable had burned at that point so that it had parted. I will ask you to state in your opinion as an expert in such matters whether or not the condition of the battery cable, the shorting and the melting and the pulling apart there, would be caused by the accident that I have described or would that be a condition which pre-existed the accident? A. In my opinion, it would be a pre-existing condition, not from the wreck itself. (On cross-examination) Q. Mr. Ramy, are you an independent operator? A. Yes, sir. Q. You go out and make inspections of vehicles at the requests of certain people, do you not? A. Yes, sir, anyone. Q. You don't just voluntarily go out and inspect these vehicles out of curiosity, do you? A. No, sir. Q. How did you happen to inspect this particular automobile? A. At the request of the Jocie Motor Lines. Q. They sent you out to look at it? A. Yes, sir. Q. You say this was substantially the same type cable; it had insulation on it, did it? A. Well, we were talking about a longer cable and a heavier cable with a different end. In general, it is a cable. Q. Did the one you looked at operate substantially the same way with a clamp on like that, and it's fastened in there with solder? A. Yes, sir. Q. The one you looked at was a longer and heavier cable, you say? A. Yes, sir. Q. Did it have insulation similar to this on it? A. Not the same type; it had a fabric cover. Q. When you refer to the cable being frayed, do you refer to the fabric or the metal? A. In this case, it was both. Q. From examining the cable, did you see any evidence there where it was frayed or it ever having been burned? A. Yes, sir. Q. It had been burned? A. Yes, sir. Q. That caused a short when it touched the frame of the car, did it not? A. Let me add--you asked two questions and I give you the answer. It was frayed in the center section but it was burned up close to where your right hand is. Q. Down here where it was frayed in the center section, was that part fabric frayed there? A. Fabric covered over a woven wire cable. Q. Was any part of the wire frayed? A. Yes, sir, very thin. Q. In the metal? A. Yes, sir. Q. And this was worn or was it burned? A. That was worn, the area you are pointing to with your left hand. Q. Did it show any evidence in there of having been burned? A. No, sir. Q. You were with General Motors 20 years before you went in this business for yourself? A. Thank you, it was 15. Q. So you have been in the business of inspecting and working on and looking at automobiles for some 20 years or so? A. Yes, sir. Q. Do you know anything about electrical currents in automobiles? A. Yes, sir. I have been in the service end of it, I am a member of the Society of Automotive Engineers and I am fairly well versed in that. Q. I will ask you then if this is fastened on a battery here. A. Uh huh. Q. And this is fastened at the starter--was that the way this one was? A. At the starter terminal post. Q. And the thing worked over there and vibration caused it to strike the frame each time that switch was on and current was flowing through there, each time it touched the frame it would cause a short, wouldn't it? A. No, sir. Q. If the current was on and this bare metal was here, it would not cause a short. A. It would not cause a short. Q. Then can you explain why there was a burned place in the middle? A. No, sir, I cannot. I simply stayed the fact that the upper end of the cable was burned
in two. Q. You don't know or have any opinion as to why or when or how that burned place got in the middle of it? A. No, sir. By the Court: I don't think he has testified there was a burned place in the middle. A. It was worn and frayed in the middle and I pointed out where you had your hand up at the bracket that's where it burned in two. Q. Was there ever any evidence of any burn on the metal in the middle of the cable? A. Not where it had been frayed, no, sir. Q. The only place that you saw was where the connection had melted out up here; is that right? A. Let's straighten that just a little. The piece of cable still stuck into the bracket, it had burned outside of this bracket leaving a part of the cable inside. In other words, this is soldered inside and can pull out, but that was not the case on that cable. Q. It didn't come out of it? A. No, sir, burned in two. Q. When did you go down and look at this tractor? A. From memory, I believe it was March 14, 1953. Q. And that was at the request of Jocie Motor Lines? A. Yes, sir. Q. From a practical standpoint as a mechanic you know that in order to get the motor running, the starter running, there has got to be a current going through the wire when you turn the switch on? A. Yes, sir. Q. And if the cable itself gets broken at any point, either from vibration or otherwise, that each time a little frayed part of it separates from the other, with the current going in there it causes a small arc, doesn't it? A. Yes, sir. Q. And eventually it would burn it in two if there was a small arc, wouldn't it? A. Yes, sir, I believe it would. A. Are you familiar with the fact that metal crystallizes under certain conditions? A. Yes, sir. Q. And when it crystallizes and stress is put on it, what takes place? A. Cracks, metal fatigue. Q. If this were crystallized because of a certain amount of vibration--and vibration and movement like that will crystallize it, won't it? A. Yes, sir. Q. And it cracked suddenly there on one side and caused an arc, it could burn the whole thing in two just like that? A. It's entirely possible. Q. There is sufficient current going through there at the time. A. Yes, sir. Q. Not because of the voltage but because of the wattage involved there? A. That's right. Q. And it could burn in two instantly, like that, without any previous notice of it whatever? A. In a matter of seconds. Q. Because that part of it was covered with insulation up to that time, wasn't it? A. Yes, sir. Q. And the only way you could have previously detected it would have been to have stripped the insulation off of it, wouldn't it? A. Yes, sir."
The defendant Strong testified that, on the morning following the collision, he examined the battery cable, and "the terminal was still clamped onto the battery post, but the cable had come out of the terminal, leaving this on the battery post and the cable hanging down."
Mr. Pearce, a defendant's witness, testified in part on redirect examination: "Q. Mr. Pearce, did you recall which particular battery cable had come undone, whether the one to the starter or the one to the frame? A. The one to the starter. Q. Is that the positive or the negative side? A. The negative side of the battery on an International truck. Q. And when that current is on if the battery cable should rub against the frame until it's raw, would that cause a short? A. It would. Q. And do the lights and the switch and everything have fuses in them on an International tractor-trailer--A. No, sir. Q. Does it have any protective devices? A. It does. It has a breaker in it, an automatic circuit breaker that will automatically kick out. Q. You mean when it's shorted? A. That's right; it automatically will kick out. Q. To keep--A. To keep from setting it afire, that's right. (Recross-examination) Q. If you had a short in your lighting system somewhere, the breaker would kick it out but you have no breaker between this end and this end, do you? A. That's right. Q. And if a short occurs as a result of some part of this cable rubbing through and rubbing on the metal, then the breaker doesn't have anything to do with it? A. Doesn't have no control whatsoever."
The evidence as to the ownership of the truck driven by Strong on the occasion of the collision, and as to the agency of Strong to operate it for Allied Egg & Poultry Company, was in part as follows: A witness for the defendant Mr. T. L. Sexton testified: "Q. Would you please state your name to the jury? A. T. L. Sexton. Q. Where do you live? A. On Stokes Avenue, Atlanta. Q. What business are you engaged in, sir? A. Trucking business. Q. Were you engaged in that business in 1952 and 1953? A. Yes, sir. Q. Under what name were you operating at that time? A. Well, we operated as Sexton Brothers and we also went to Lawrenceville and operated as Allied Egg & Poultry. Q. You operated as Allied Egg & Poultry? A. Yes, sir. Q. Were you so operating on March 9, 1953, a year ago? A. I believe so, yes, sir. Q. Would you state what your setup with Allied Egg & Poultry was in regard to trucking? A. Well, we operated as Allied Egg & Poultry although Sexton Brothers did all the paying and disbursements on it. Q. You operated under them? A. Yes, sir. Q. You mean you were their transportation department? A. That's right, yes, sir. Q. When you carried a load for Allied Egg, did Allied Egg pay you or did they pay the driver? A. They paid me. Q. Who paid the driver? A. I did. Q. And that driver you assigned to it was an employee of yours rather than Allied Egg? A. Now, for a while--I don't remember just exactly when--part of the drivers was on the payroll of Allied Egg & Poultry and I'm not sure as to when that was discontinued and the whole thing--in other words, the whole revenue came to Sexton Brothers and we disbursed it out to ever who it went to. Q. Do you recall whether Mr. Strong was on your payroll or their payroll at the time of that particular accident? A. No, sir, I don't; I'm sorry. Q. Then when you stated a while ago you operated both as Sexton Brothers and Allied Egg & Poultry, what do you mean by you 'operated as Allied Egg & Poultry?' A. We were licensed in Allied Egg & Poultry and we operated out of Georgia as Allied Egg & Poultry, the equipment did. Q. Your hauling out of the State of Georgia was under Allied Egg & Poultry's license, then; is that right? A. That's right. Q. Then were you an employee of Allied Egg & Poultry or were you operating then--that is, at the time of this accident--were you an independent hauler for them? A. Sexton Brothers always did the paying. I say 'always'. Well, most of the time did the paying of all the drivers and everything. In other words, the whole thing was set up on a poundage base on what we moved from Allied Egg & Poultry. All the drivers was paid by Sexton Brothers. We still have the books on that."
Defendant Clary P. Strong testified in part: "Q. Who owned the truck you were driving at the time of the collision on March 9th? A. I did. Q. But it was registered with the State of Georgia in the name of Allied Egg & Poultry under their license number, wasn't it? A. Correct. Q. And that gas license number AH8236; is that correct? A. I think so, yes, sir. Q. And that license registration had never been transferred, had it? A. What do you mean? Q. The license was bought in the name of Allied Egg & Poultry; is that right? A. That's correct. Q. Were you driving for them then? A. Yes, sir. Q. Did you continue your driving for them during your hauling of poultry right on up to the time this accident happened, or did you work for someone else, or did you go to doing some other type of work? A. Other type of work? Q. Yes. A. No, sir. Q. From the time when this license was bought on April 11, 1952, up to March 9, 1953, your livelihood was made hauling for Allied Egg & Poultry, wasn't it? A. Yes, sir. Q. Driving this truck all the while? A. Yes, sir. Q. I will ask you if you didn't also make this statement in your statement of March 12th: 'The tractor I was driving is owned by Allied Egg & Poultry Company, Lawrenceville, Georgia'? A. Yes, sir."
The same witness testified that the name Allied Egg & Poultry Company was on the tractor at the time the collision occurred. The witness also testified that he was not directly employed by Allied Egg & Poultry Company at the time of the collision, but was the employee of Sexton Brothers.
The most vital question and the most difficult of solution is whether the verdict was supported by the evidence. The issue centers around two phases of evidence: (1) Did the evidence show facts that would constitute the defendant Allied Egg & Poultry Company respondeat superior of the driver Strong? (2) Did the evidence authorize a finding that the proximate cause of the wreck was the negligence of the defendant rather than a pure accident for which no one was responsible? We think that the testimony of the defendant's witnesses Strong and Sexton, while somewhat confused, was sufficient to authorize the jury to infer that the truck operated by Strong was owned by the defendant Allied Egg & Poultry Company, and that Strong was an employee of Allied Egg & Poultry Company, acting within the scope of his employment and in the prosecution of the company's business on the occasion of the collision. In this connection read Hix-Green Co. v. Dowis, 79 Ga. App. 412 (53 S. E. 2d 601); Barnum & Bailey Shows v. Himmelweit, 17 Ga. App. 85 (86 S. E. 96).
The petition alleged one of the acts of negligence that caused the collision between its truck and that of Allied Egg & Poultry Company was that the defendants failed to have the tractor of the poultry company equipped with a lamp or lamps, clearly visible for a distance of not less than 200 feet from the rear thereof, as required by section 68-316, Georgia Code Annotated and this constituted negligence per se on the part of the defendants.
The defendants contended that they were not negligent in that respect or in any other manner. In reference to the lights having become extinguished on the poultry company's truck, they maintained that, while the truck was being operated upon the highway on the occasion of the collision, through no fault of theirs a cable connecting the lights with the battery in the truck suddenly burned through, so that no electricity could reach the bulbs in the truck's lamps, and in consequence of this unforeseen event, which could not in the exercise of ordinary care on their part have been discovered, the lights on the truck ceased to function.
The controversy then centered around the question as to whether the defendants, or either of them were negligent in not having properly inspected the cable prior to driving the truck upon the highway.
Mr. Ramey testified for the plaintiff in substance on direct examination: that he found a frayed place in the middle of the battery cable, where the insulation was worn off from rubbing against the metal frame of the truck. He stated, in his opinion as an expert, that it would have taken a month or more for the cable to have become worn and frayed like that, and that the condition pre-existed the accident. He further testified that the contact of the bare metal of the cable with the frame of the truck would create a short, and this would produce intense heat in the cable which could melt the solder holding the cable in the battery terminal. He further testified that the solder was melted in the terminal connection, part of the wire cable was still in the bracket, and the cable had burned through at about that point, and was hanging down.
On cross-examination this witness testified: that there was no evidence as to the cable having burned at the point where it was frayed and the insulation was worn off near the middle of the cable; that the cable had burned through near the battery terminal; and that each time the bare metal of the cable touched the metal frame it would not create a short. He further testified as an expert that a cable could, from metal fatigue and vibration, crystallize; that when it crystallized and stress was put on it, the cable could crack; that, as each strand of the cable parted, an electric arc could result and eventually the whole cable would be burned through; and that it was possible that, if the cable cracked suddenly on one side and caused an arc, the whole cable might be burned through at one time. He further testified that, if such a part of the cable were covered with insulation, its crystallized condition would not be detected without stripping off the insulation.
It will be observed upon all analytical examination of Mr. Ramy's testimony that he did not testify that there was metal fatigue from vibration or any other cause. He simply replied to a question of counsel that, if such condition existed, it could suddenly, even momentarily, cause the cable to burn in two at its end.
There was nothing contrary in the witness Ramy's testimony. On direct examination he simply stated that the cable could have been caused to melt and break apart by a condition that he found, upon his inspection of it, to exist, namely, the worn place in its center caused by its rubbing against the frame of the truck.
On cross-examination, without retracting or contradicting his testimony given on direct examination, he stated that another condition, which he did not find, and under the circumstances related by him it did not appear could have been discoverable at the time of his inspection, could have the effect of melting the cable instantly and at a point that was up to that time concealed by the insulation or fabric cover of the cable. It was apparent, of course, that, if the latter condition prevailed, a careful inspection of the cable by the defendants before taking the truck out upon the highway would not have disclosed it.
We think, under these circumstances, it was for the jury to say whether the cable was melted by the condition that the witness did find in it, or by a condition that might have existed and brought about the same result.
We are also of the opinion that it was for the jury's determination as to whether the defect that destroyed the usefulness of the cable could have been discovered by the exercise of ordinary care on the part of the defendants before beginning the trip on which the collision occurred, that the worn place in the center of the cable caused it to melt at its end, whether the condition could have been discovered by a reasonably careful inspection of the cable.
Particularly are we persuaded to this view by this court's decision in the case of Cruse v. Taylor, 89 Ga. App. 611, 616 (80 S. E. 2d 704): "We think when it appeared from the proof that defendant's brakes were inadequate to control the movements of the car as required by statute the burden passed to defendant to convince the jury that the violation of the statute, if unintentional, was consistent with due care on his part in having the brakes inspected and repaired and that the defect existed at the time of the accident wholly without his fault."
This law is applicable to the statute requiring that motor vehicles be equipped with the lights as it is to the law requiring motor vehicles to be equipped with serviceable brakes.
We are of the opinion that none of the special grounds of the motion for a new trial shows error. While the charge complained of in ground 6 is perhaps not free of imperfection, it was not error for any of the reasons assigned by the movant.
FELTON, C. J., dissenting. I think the evidence demanded a finding that the cause of the cable's burning in two was a defect at the end of the cable, which was covered with insulation at the time of the collision, and that it was a defect which was not discoverable by the defendants by the exercise of ordinary care. The evidence also demanded the finding that the defect in the center of the cable, where the insulation and a few wires were worn, did not contribute in any way to the burning in two of the cable at a point near its end.
The only evidence as to the cause and effect of the cable's burning or breaking in two was the evidence of W. R. Ramy. Assuming that on direct examination Mr. Ramy testified to facts which may have authorized the jury to infer that the patent defect of the cable's being frayed in the middle caused the cable's burning or breaking in two, on cross-examination Mr. Ramy's testimony completely contradicted such facts and clearly showed that the frayed place on the cable had no connection with the cable's burning or breaking in two, showed that the cable was insulated at the point where it burned or broke in two, and showed that the only way the defect which caused the burning or breaking of the cable could have been discovered was to remove the insulation from the cable at that point. See, in this connection, Evans v. Josephine Mills, 119 Ga. 448 (2) (46 S. E. 674); Evans & Pennington v. Scofield's Sons Co., 120 Ga. 961 (48 S. E. 358). To make such an inspection would have rendered the cable useless because no insulated electric cable would be of practical use after the insulation had been removed. Under the facts of this case, the defendant Strong was charged only with the exercise of ordinary care, and the duty to exercise ordinary care would not require such an inspection as would have revealed the latent defect which caused the cable to burn or break in two. The cable's burning or breaking in two falls into the legal category of "accident." Stansfield v. Gardner, 56 Ga. App. 634, 645 (193 S. E. 375); Richter v. Atlantic Co., 65 Ga. App. 605, 608 (4) (16 S. E. 2d 259). Where the damage sued for resulted from an accident, there can be no recovery from the defendant. Seaboard & Roanoke R. Co. v. Spencer, 111 Ga. 868 (36 S. E. 921); Glanton v. City of Rome, 13 Ga. App. 452 (79 S. E. 225).
Hamilton Lokey, George A. Durden, Lokey, Bowden & Rolleston, for Jocie Motor Lines, Inc.
Dunaway & Embry, J. M. Embry, for Allied Egg & Poultry Co., Inc.
John H. Hudson, William R. Hudson, for C. P. Strong.
Saturday May 23 02:45 EDT

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