In a suit brought in a court of this State for damages to a truck incurred in a collision with another truck on a highway in South Carolina, in which suit the law of South Carolina as to the effect of the plaintiff's contributory negligence upon the plaintiff's right to recover was not pleaded and proved. The trial judge should have given in his charge to the jury the rule of the common law in this particular, as declared and interpreted by the courts of this State, to the effect that contributory negligence on the part of the plaintiff bars any right to recover, in order to submit to the jury the law applicable to the issues made by the pleadings and evidence in the case. The charge being insufficient in this respect, the trial judge erred in overruling the motion for a new trial.
Brighton Mills Inc. sued B. L. Craven, doing business as Fairground Poultry Farm, for damage to its truck, incurred in a collision with a truck owned by the defendant and operated by his agent. Brighton Mills alleged: that its truck and trailer were being driven north along a state highway in South Carolina at about 10 a.m. on December 28, 1948; that the defendant's truck was being driven in the same direction on the same highway, and attempted to pass the plaintiff's truck as both trucks approached the crest of a hill, where neither driver could observe traffic approaching from the opposite directions for more than 200 feet; that, as the trucks reached the crest of the hill, an automobile approached the two trucks from the opposite direction; that the operator of the defendant's truck then drove to his right side of the highway before he had cleared the plaintiff's truck, struck the left front of the plaintiff's truck, caused the plaintiff's driver to lose control of it, and thereby caused the plaintiff's truck to run off the highway and turn over, damaging the plaintiff's truck in certain particulars; that the plaintiff's truck was then being driven on the right side of the highway at a speed not exceeding thirty miles per hour; that the plaintiff did not in any way contribute to the loss and damage complained of; and that the defendant was negligent in driving his truck to the right side of the highway while passing the plaintiff's truck without being safely clear of it, in driving to the left side of the highway while approaching the crest of a hill, and in driving his truck into the plaintiff's truck, which acts of negligence were the proximate cause of the damage complained of. By amendment, the plaintiff alleged that the cause of action arose in the State of South Carolina, and set out certain statutes of that State providing rules for vehicles overtaking and passing other vehicles proceeding in the same direction, and providing lawful speeds for motor trucks and motor truck-tractors.
B. L. Craven, the defendant, answered, denying the material allegations of the petition, and further alleging that the damage complained of was the result of the negligence of the plaintiff's driver, who increased the speed of the plaintiff's truck after the defendant's driver had given the proper signal and had started to pass the plaintiff's truck. Such negligence was alleged to have been the sole proximate cause of the plaintiff's damages; the defendant also alleged that his truck was being operated at a safe and reasonable speed, and that his driver was in the exercise of ordinary care.
On the trial the jury returned a verdict for the plaintiff in the full amount sued for. The defendant made a motion for a new trial on the general grounds and on the following special grounds:
Craven." It is contended that this charge was error because the collision occurred in South Carolina, and, there being no law of that State pleaded or proved concerning the care required of the parties, the common law would be applicable, rather than the rule given in the charge complained of. The correct and applicable rule of the common law is that any negligence on the part of the plaintiff which, taken in connection with the defendant's negligence, contributed to the proximate cause of the injury, would bar a recovery by the plaintiff.
(2) The court also charged the jury: "If your verdict is one for the defendant, if you do not believe the plaintiff has established the right to recover by a preponderance of evidence under the rules of law given you in charge, or if you believe the plaintiff's operator of his machine was negligent and that his negligence was the cause of the accident in question, then your verdict would be in favor of the defendant. The movant points out that the cause of action arose in South Carolina, in which State the common law is presumed to prevail in the absence of pleading and proof to the contrary; and he contends that the charge was incorrect in failing to apply the common-law rule that, if the plaintiff's negligence contributed to the proximate cause of the injury, then the plaintiff should not recover but instead the effect of the charge was that the plaintiff's negligence must have been the cause of the accident in question before the defendant would be entitled to a verdict. It was further contended that the charge had the effect of depriving the movant of the benefit of his defense that the plaintiff's negligence contributed substantially to the injury complained of.
(3) The court erred in failing to give in charge to the jury the principle that, if the plaintiff was guilty of any negligence which, taken in connection with the negligence of the defendant, if any, contributed to the proximate cause of the plaintiff's injuries, then the plaintiff would not be entitled to recover. The defendant alleged in his answer that he was attempting to pass to the left of the plaintiff's vehicle on a highway in South Carolina after giving the proper signal, but that the plaintiff's operator increased the speed of his vehicle after the defendant had started to pass, and would not permit the defendant to pass without interference, which acts of negligence caused and contributed to the injuries sustained by the parties. It is contended that the failure to charge on an issue raised by the pleadings and by the evidence in support thereof deprived the defendant of the law applicable to one of the substantial issues in the case and placed upon the defendant a greater burden than is imposed by the common law, which was applicable under the facts of the case.
The defendant's motion for a new trial was overruled, and he excepts to that judgment.
The three special grounds of the motion for a new trial will be considered together, for they serve to raise the questions of whether the trial judge was required to give in his charge to the jury the doctrine of contributory negligence, under the common-law rule, and, if so, whether the charge as given was a correct statement of that principle as applicable to the present case.
The collision occurred in South Carolina; and so the law of that State, as the place where the alleged tort occurred, determines the substantive rights of the parties. Green v. Johnson, 71 Ga. App. 777 (3) (32 S. E. 2d, 443); Lay v. N. C. & St. L. Ry. Co., 131 Ga. 345 (1) (62 S. E. 189). As South Carolina is one of the thirteen original States, it will be presumed that the common law, as interpreted and declared by the courts of this State, prevails in that State and so governs the substantive rights of the parties, unless the law of that State concerning such rights has been pleaded and proved. The laws of South Carolina as to the right of the plaintiff to recover, if his negligence was a contributing cause of the injury complained of, were not pleaded and proved. Therefore, in this respect, the common law as interpreted by our courts determines the rights of the respective parties. Slaton v. Hall, 168 Ga. 710 (148 S. E. 741, 73 A.L.R. 891); Bolton v. Bluestein, 55 Ga. App. 782 (191 S. E. 388).
The pleadings and the evidence made an issue as to the plaintiff's contributory negligence. In its petition, the plaintiff, Brighton Mills, alleged that it did not in any way contribute to the loss and damage complained of, and this allegation was denied by the defendant. The defendant also alleged that the damage complained of was the result of the negligence of the plaintiff's driver, who increased the speed of the plaintiff's truck after the defendant's driver had given the proper signal and had started to pass the plaintiff's truck. Section 1616 (8) (a) (1) of the Code of Laws of South Carolina, as pleaded and introduced in evidence by the plaintiff, is as follows: "Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle."
The evidence showed that the defendant's poultry truck had been following the Brighton Mills tractor-trailer truck up a hill and attempted to pass by it soon after reaching the top of the hill, when both trucks were moving down grade with both drivers having a clear view of the highway ahead for 900 feet. According to the testimony of the defendant, B. L. Craven, and his driver, the trucks were both moving at about 15 or 20 miles per hour at the top of the hill; Craven's driver blew his horn before going around the Brighton Mills truck, and was then alongside it for about 300 feet as he attempted to pass it; both trucks were increasing their speed down the grade and they stayed together; Craven's driver thought he had cleared the Brighton Mills truck, and he turned back to the right side of the road when a car approaching from the opposite direction was about 100 feet away; and, when the trucks collided, they were proceeding at 55 or 60 miles per hour. The Brighton Mills truck was forced onto the shoulder of the road, went out of control, and turned over on the hill beside the highway.
From this evidence, and under the law applicable thereto, the jury could have found that the plaintiff was negligent as alleged in the answer, and that such negligence, although it may have been less than that of the defendant, was a materially contributing cause of the damage to the plaintiff's truck. Had such a finding been made, still, under the charge as given, the jury would have been required to return a verdict for the plaintiff in the full amount sued for (as the jury in fact did). The court charged, in the excerpts complained of, that the plaintiff could not recover if its driver could have avoided the damage complained of by the use of ordinary care, if the parties were equally negligent, or if the plaintiff's negligence was the cause of the collision. This charge was correct insofar as it stated that the plaintiff could not recover if its negligence was the sole cause or was equal to that of the defendant; but it failed to cover the finding which the jury would have been authorized to make, as stated above, that the plaintiff's negligence, although less than the defendant's, nevertheless contributed materially to the plaintiff's injury. Under such a finding, the plaintiff cannot recover, according to the rule of the common law as declared and interpreted by the courts of this State. See Minter v. Kent, 62 Ga. App. 265, 270 (8 S. E. 2d, 109); Hines v. Evitt, 25 Ga. App. 606 (4) (103 S. E. 865); Tuten v. Atlantic Coast Line R. Co., 4 Ga. App. 353 (2) (61 S. E. 511); Macon & W. R. Co. v. Davis, 13 Ga. 68 (10); Macon & W. R. Co. v. Johnson, 38 Ga. 409, 432. This principle, as ruled in those cases, is that contributory negligence on the part of the plaintiff bars any right to recover.
The three special grounds showed that the common-law rule pertaining to the plaintiff's contributory negligence should have been given in charge to the jury in order to submit to them the law applicable to the issues made by the pleadings and the evidence, and pointed out the insufficiency of the charge as given. The court erred in overruling the motion for a new trial on the special grounds thereof; and the general grounds of the motion are not passed upon, as the evidence may not be the same on another trial.
Judgment reversed. Felton and Worrill, JJ., concur.