1. The evidence was insufficient to support the verdict for special damages for the loss of the automobile, there being no evidence of its value after the collision, and no evidence sufficient to establish that it had been totally destroyed.
2. The charge complained of in ground 5 of the amended motion for new trial placed an illegal burden upon the defendant, and it was error so to charge. *Page 655
3. In view of the foregoing rulings, it is unnecessary to pass on special grounds 4, 7 and 9; and special grounds 6 and 8 were abandoned.
DECIDED SEPTEMBER 13, 1947. W. T. Haggard brought an action for damages for injuries to his person and property against Nelson T. Reese, doing business as N. T. Reese Trucking company, in the City Court of Albany. The plaintiff alleged substantially: He was the owner of a four-door, 1939 sedan, Oldsmobile on Friday night, December 14, 1945; he left Birmingham, Alabama, about 9:00 a. m. Friday morning, and was proceeding on the Sylvester-Albany public paved highway and driving at a speed not exceeding thirty-five miles per hour, and had reached a point going east on said highway, approximately sixteen feet wide, and three blocks west of Isabella Street in the City of Sylvester, between said Isabella Street and what is known as Pine Grove Service Station; and at the time the plaintiff reached said point, it was dark and raining, and by reason of the rain and foggy atmosphere the black-top pavement of the highway was wet and slick. Prior thereto, and on or about Thursday night, the driver of an International Truck with ten wheels, red body and dark-green cab had parked said truck on the highway on the right side facing east about two or three feet removed from the center line of the highway, and said vehicle did not have any taillight or other light whatsoever burning on said truck or trailer, which had remained so parked for more than twenty-four hours prior to the injuries complained of. While the plaintiff was traveling east to Sylvester from Albany at a rate of speed not exceeding thirty-five miles per hour, and with his front headlights burning, a car approaching from the opposite direction with its headlights burning blocked the left side of the highway, and the plaintiff's car collided with the black-colored rear extension of the cab of the truck, parked on the right side of the highway at an angle across the right side of the highway, completely blocking the highway, and the truck was loaded with approximately seven and one-half tons of wet concrete blocks which silhouetted and blended with the pavement in color, and all of which was not visible to one approaching on said highway. The plaintiff received certain enumerated personal injuries which are permanent. Prior to the injuries received, the plaintiff was working and earning $500 per *Page 656 month, and was in good health, and up until the time of the trial he has been unable to perform his usual duties. His automobile prior to the collision was of the fair market value of $1800, and after the collision it was a total wreck and had no market value whatsoever. The plaintiff alleged that the defendant's driver's negligence was the proximate cause of the injuries of the plaintiff and amounted to a failure on the part of the defendant's driver to exercise ordinary care and diligence. The driver's negligence consisted of the following: (1) in parking the truck and trailer on a State-aid road or highway about two feet from the center line; (2) in parking the said vehicle without any rear lamp or rear light burning whatsoever; (3) failure by the defendant's driver to exercise ordinary care and diligence in failing to warning or signal the plaintiff that he had blocked and obstructed the highway, and in failing to have a watchman or put out flares as a warning or signal. The plaintiff suffered special damages as follows: destruction of his automobile, $1800; loss of time, three months, $1500; doctor's and hospital bills, $300; and general damages consisting of permanent injury, pain and suffering, $30,000.
The defendant answered, denying all the material allegations of the petition, and by amendment alleged that the plaintiff was guilty of contributory negligence at the time of the accident in question, which was the proximate cause of his injuries, in operating his car along the highway at an excessive rate of speed under the circumstances, it being a fact that the plaintiff could not stop his automobile within the range of vision, although the plaintiff knew that he could not see and could not be aware of what was on the road ahead of him. On the trial, the jury returned a verdict for the plaintiff in the sum of $5100. The defendant filed its motion for new trial, as amended, which was overruled and he excepted. 1. Under the general grounds of the motion for a new trial, counsel for the defendant insist that the evidence was insufficient to support the verdict with respect to the special damages awarded for the loss of the automobile on the basis that it was totally destroyed; and also that the evidence was insufficient for the jury to find how much depreciation, less than total destruction, *Page 657 the plaintiff's automobile had suffered as a result of the collision. We are in accord with this contention. The plaintiff alleged that his automobile was, prior to the collision of the fair market value of $1800, and after the collision, it was a total wreck, worthless, and had no market value whatsoever. With regard to the market value of the plaintiff's automobile, he testified: "I had an automobile. As to, do I know where that automobile is now — I have never seen it since the accident except when I went to the Crane Junk Yard at the end of the bridge down there to get my bag out of it. As to the condition of that car — that car had a total of about 32,000 to 33,000 miles on it; it was my wife's car and was driven very little, it was garaged every night, and it was maintained in every respect and taken care of, and I would say it was in absolutely perfect condition. I don't know the fair value of it. All I do know would be just from my investigation trying to get a car comparable to it. As to what was the fair market value of it in the condition it was in — well I would not have taken $1800 for it. I would say the fair market value, based on the way cars are selling, was $2000 to $2200. I don't recall what it cost. It was in good condition. I had a radio and a heater. It was in perfect condition. It was a four-door Oldsmobile sedan. I used it in my business. As whether I have driven it since — I have never seen it since. I don't know where it is today, I don't know where it is now." D. S. Hudson, Sheriff of Worth County, testified: "I saw Mr. Haggard's car the next morning. As to its condition, his car was torn up pretty bad, the front of it was. . . His car was pretty badly torn up." It is the well-established rule that the measure of damages for injuries to an automobile is the value of the property before the injury less the value after the injury. The plaintiff sufficiently established a value for the automobile prior to the accident, but failed entirely to establish that the automobile had, as alleged in his petition, been totally destroyed. Nowhere in his testimony does he say that the car was totally destroyed or to what extent it was damaged. One of his witnesses, as quoted above, did say that the front end of the car was pretty badly torn up, but he did not say to what extent, and the fact that the plaintiff last saw it in the junk yard was not conclusive of its total destruction. For the foregoing reason the court erred in overruling the motion for a new trial. *Page 658
2. In ground 5 of the motion for new trial, as amended, counsel for the defendant complain of the following portion of the court's charge: "The plaintiff cannot recover if the defendant shall make it appear, to the satisfaction of the jury, that the defendant employee, at the time of the injury, exercised all ordinary and reasonable care and diligence, or if the injury was caused by the failure of the plaintiff to exercise due care, or if both parties were a fault, and the plaintiff, by the exercise of due care, could have avoided the consequences to himself caused by defendant's negligence, if you find that the defendant was negligent," on the ground that this portion of the charge instructed the jury that it was incumbent upon the defendant to make it appear to the satisfaction of the jury that his employee had exercised all ordinary and reasonable care and diligence, whereas under the law the burden of proof was upon the plaintiff to show that the defendant's employee had not exercised all ordinary and reasonable care and diligence. Immediately preceding that portion of the charge excepted to, the court charged the jury: "The plaintiff must recover, if at all, by proof to your satisfaction, by a preponderance of the evidence, that the defendant was negligent. He cannot recover for any other or different acts of negligence than those alleged in his petition." Counsel for the plaintiff contend that this portion. together with certain other portions, of the charge cured the instruction of the error assigned. We think not. The ruling inWells v. Steinek, 49 Ga. App. 482 (176 S.E. 42), is controlling on this point. The recorded charge in that case shows that the court charged the jury: "I charge you that the plaintiff carries the burden of proving his case as laid by the preponderance of the testimony. . . If you, gentlemen, find that the plaintiff has proven his case by the preponderance of evidence, it will then be your duty to render a judgment in favor of the plaintiff for the amount asked in his petition or for whatever sum you feel would be a reasonable amount for his damages. On the other hand, if the defendant has proven his case to the satisfaction of your minds that he is not indebted to the plaintiff in any sum whatsoever, then it will be your duty to bring in a verdict in favor of the defendant." In its syllabus opinion, the court said: "The burden was on the plaintiff to prove his case as laid, and no burden rested on the defendant to disprove the plaintiff's case. We think this *Page 659 charge placed an illegal burden upon the defendant and that it was error for the court so to charge." In view of the ruling in that case the charge in which, taken as a whole, was far less subject to assignment of error than the charge excepted to in this case, the court erred in giving in charge that portion of the charge excepted to.
3. (a) Special ground 6 and 8 of the motion for new trial were specifically abandoned by counsel for the defendant in their brief; and
(b) The court's expression of the opinion that there was no contributory negligence in this case is not likely to recur on a new trial of the case, which must be granted in view of the rulings in divisions 1 and 2 of this opinion; and the same is true of the error assigned in ground 9 of the motion; and
(c) While it was error for the court to charge the jury, without qualification, the provision of Code, § 105-2003: "In some torts, the entire injury is to the peace and happiness, or feelings of the plaintiff, and, in such cases, no measure of damages can be prescribed, except the enlightened conscience of impartial jurors," and without confining the application of this principle to the damages claimed to have been suffered by virtue of pain and suffering, it is unnecessary to decide here whether this was such error as to cause a reversal of the case, as the case must at any rate be retried for the reasons assigned in divisions 1 and 2 of the opinion; and those grounds of the motion are not here passed upon.
For the reasons set forth in divisions 1 and 2 of this opinion, the court erred in overruling the defendant's motion for a new trial.
Judgment reversed. Sutton, C. J., and Parker, J., concur.