HOLMES, Circuit Judge.
This is an action by appellees, brought under the Georgia law,
The accident occurred about 10:30 o'clock at night, between Milledgeville and Sandersville, Georgia, on a straight stretch of paved highway. The paved part of the road was twenty feet wide, with usable dirt shoulders about five feet wide on each side. The left front fender and the left rear fender of the car came in contact with the back bumper or mud-guard of the trailer. There was an indentation on the outside of the left door of the car, and the door handle was bent back where the arm of the deceased was pressed against it.
The amended complaint alleged that the individual defendant was negligent in suddenly driving the truck from the right to the left side of the highway, thereby striking the decedent's car and virtually severing his left arm; in operating the truck in excess of fifty miles per hour; in failing to dim the lights and blow the horn of the truck; in operating the truck at a speed greater than was reasonably safe; and in that, after the accident, the driver drove the truck away from the scene thereof without making any effort to render assistance to the injured occupant of the car.
The defendants denied these allegations of negligence; and averred that the automobile driven by the deceased was being operated at an excessive rate of speed and on the wrong side of the road; that the defendant Hudson pulled the truck to his extreme right and as far off the pavement as he could safely do, but nevertheless the automobile driven by the deceased struck the left rear end of his trailer; that Hudson immediately stopped his truck, got out of the same, and walked back to render assistance, but the automobile driven by the deceased did not stop within his sight, and no one in the car came back to the scene of the accident. A graphic account of the occurrence is contained in the testimony of the witness Pryor, as follows:
"I was getting a cigarette out of a package. I was not looking up, and I heard Mrs. Wood say, `Look out. He's on your side of the road.' [This exclamation was relevant and competent as part of the res gestae.] I looked up and saw the lights. All just in a split second, and the first thing I thought of was pulling her over because it was on her side. I pulled her over and did not see very much of it. She was sitting right behind the driver at the time she screamed. I do not know whether she was sitting back or leaning forward. Between the time she screamed and the time the cars crashed was all in a flash. I did look up and saw the lights of the other car. It was just a side-swipe, more of a thud than anything else. I asked Snyder if it hurt his car. He said no, he didn't think it did, but it seemed to numb his arm and he pulled off on the shoulder of the road, and as feeling came back into the arm he began screaming. We stopped and I walked around the front of the car and came
Pryor, Mrs. Woods, and the driver were the only occupants of the car. There was ample evidence to support the verdict, and the issues were clearly such as were properly submitted to the determination of a jury. The decisive questions on this appeal relate to the admissibility of evidence and the court's instructions to the jury.
Error is assigned to the admission of testimony by one Osborne, a witness for the plaintiffs, who gave instructions to Snyder (the deceased) about driving the car involved in the accident. Osborne testified that, "two or three or four days" before this accident, he told the deceased not to drive the car over thirty-five miles an hour; that if he did, he would throw the bearings out because it was not getting sufficient oil; that if he drove it as much as a mile at a higher rate of speed, he would throw the bearings out for lack of oil. This was objected to as hearsay, but the court held it to be admissible. The evidence was intended to corroborate the testimony of other witnesses for the plaintiff to the effect that the car was not running over thirty-five miles an hour at the time of the collision, the speed of the car being an important issue. This evidence was admissible under a Georgia statute, not as hearsay but as original evidence of a fact that was intended "to explain conduct and ascertain motives."
The explanation as to why the car was being driven so slowly on a straight stretch of open highway was a relevant and material fact that the jury was entitled to know in considering the weight and credibility of appellees' evidence as to the speed of the car.
Georgia also has a statute admitting statements "accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought."
Error is also assigned to the refusal of the court below to instruct the jury that the plaintiff would not be entitled to recover if the deceased, as he approached the truck, was driving with his arm extending out the window of his car as much as six inches, without his hand on the steering wheel; and that this act was the direct and proximate cause of his death. This instruction was unsupported by the evidence in one respect, and in another it announced an incorrect principle of law; it was also ambiguous. With his left arm hanging out the window, his left hand could not have been on the steering wheel; moreover, we cannot approve an instruction that implies negligence as a matter of law from driving an automobile with one hand. The deceased was evidently driving with his right hand, and he handled the car in such manner, even after his left arm was disabled, as to bring it to a stop without the other occupants of the car knowing that he had been hurt. Another view is that the deceased may have held his hand out for the purpose of giving a signal. We think the issue as to contributory negligence was for the jury, and that the court did not err in its instructions to this effect.
The lower court's action in reading the Georgia hit-and-run statute
The statute lays an affirmative duty on the driver of a truck or car involved in a collision not to run away but to stop, identify himself, and render such assistance as may be reasonable or necessary; but in this instance the identity of the driver was discovered without trouble or expense, and there was no damage that resulted from want of reasonable or necessary assistance to the injured party. Therefore, the driver was not liable for failure to stop even if he did run away; but he denied that he ran away, claiming that he was on the right side of the road and was not to blame for the collision in any respect. This was also the contention of the owner of the truck. In these circumstances, what the driver did immediately after the collision was relevant only to show whether he knew or thought that he was to blame. The court's instruction on this subject was not prejudicial to the defendants, since it denied recovery for a violation of the statute and left to the jury only the question as to whether the conduct of the driver after the injury tended to incriminate him or to discredit his testimony. The general rule is that evidence of facts relevant to any issue before the jury is not rendered incompetent merely because those facts reveal that a crime may have been committed.
The judgment appealed from is affirmed.
I cannot agree with the view of the majority that Osborne's testimony was admissible, nor with their view that it was not prejudicial and reversible error to charge on and read to the jury the Georgia Hit and Run Statute.
As to Osborne's testimony, it seems clear to me that, though not true hearsay because "not an unsworn statement"
Notwithstanding this view, that the admission was error, I should not vote to reverse for it if the trial were otherwise errorless. For, while it was offered with the definite purpose of disputing the contention of defendant's driver, that the Snyder car was coming around the curve at fifty miles per hour and of bolstering the plaintiffs' contention that its speed was not over thirty-five miles, the statement offered was not unsworn but sworn to, and it was neither hearsay nor, in the sense of a hearsay declaration, self serving. In addition, there was competent and relevant evidence in support of plaintiffs' theory, and I think it cannot be reasonably said that the admission was prejudicial. But this was by no means the only error. There was the serious, the very prejudicial error of charging and reading to the jury the Hit and Run Statute.
"The statute is a penal one. * * * Its violation was made a crime, and as written the penalty is assessed only against the operator, without reference to the owner of the vehicle involved or the employer of the driver, as the case may be. `Unless otherwise provided, such a statute applies only to the operator of the motor vehicle, and does not create any liability on the part of the owner who is not the operator; if, however, the owner is present and the vehicle is being operated under his control, he is liable for non-compliance with the statute, unless the operator disobeys his instructions.' 42 C.J. 385, § 1450. The provisions of a statute similar to that under consideration were invoked in a civil action for the death of a boy struck by a truck, in the case of Nager v. Reid, 240 Mass. 211, 133 N.E. 98, where it was held: `Section 24 of G.L. c. 90, making it a criminal offense for the driver of an automobile to go away without stopping and making known his name, residence and the number of his vehicle, after knowingly causing injury to a person, relates only to the operator and does not create any liability, criminal or civil, on the part of an owner who is not the operator.' In our investigation we have examined Battle v. Kilcrease, 54 Ga.App. 808, 189 S.E. 573, and, without regard to the soundness of certain statements made in division two of the opinion in that case, we do not consider that the rulings there made are applicable to facts such as here presented."
In Hurst v. The State, 39 Ga.App. 522, 147 S.E. 782, 783, a criminal case brought for violation of the statute, the court said:
"It is proved that a defendant, knowing of an injury that he has inflicted, deliberately refuses to stop or assist his victim, this fact may be considered as evidence of a malignant heart, and as an aggravating circumstance which may be taken into consideration in determining the defendant's guilt and fixing his punishment."
It thus appears that under the settled law in Georgia, the statute is a penal one, and its violation is regarded as evidence of a malignant heart and the basis for punitive action on the part of the jury. Though plaintiffs had charged the defendants with violation of the statute, appellants were not on trial for its violation. Whether either of them was guilty of an offense under the statute was not an issue in the case, and if there had been evidence tending to show a violation of the statute, it would seem under these decisions that it would be error of a highly prejudicial kind to charge the statute in the case. It is not necessary, however, for us to so decide. If it could be charged in any negligence case, where there was evidence that the statute had been violated, it is quite plain that this is no such case, for here no evidence of its violation was presented. When
No witness testified to a violation of the statute by the driver or to any fact from which a violation could be inferred. The driver and six other witnesses, including the night policeman in Milledgeville, testified positively that the driver did not hit and run as prohibited by the statute, but, on the contrary, he stopped, reported the accident, and went back to the scene of it to do what he could to tender assistance, only to find, what the uncontradicted evidence shows, that the injured person did not remain at the place of the collision, but was immediately driven away.
In these circumstances, to read the Hit and Run Statute to the jury and to charge
"The statute is a penal one. * * * Its violation was made a crime, and as written the penalty is assessed only against the operator, without reference to the owner of the vehicle involved or the employer of the driver, as the case may be. `Unless otherwise provided, such a statute applies only to the operator of the motor vehicle, and does not create any liability on the part of the owner who is not the operator; if, however, the owner is present and the vehicle is being operated under his control, he is liable for non-compliance with the statute, unless the operator disobeys his instructions.' 42 C.J. 385, § 1450. The provisions of a statute similar to that under consideration were invoked in a civil action for the death of a boy struck by a truck, in the case of Nager v. Reid, 240 Mass. 211, 133 N.E. 98, where it was held: `Section 24 of G.L. c. 90, making it a criminal offense for the driver of an automobile to go away without stopping and making known his name, residence and the number of his vehicle, after knowingly causing injury to a person, relates only to the operator, and does not create any liability, criminal or civil, on the part of an owner who is not the operator.' In our investigation we have examined Battle v. Kilcrease, 54 Ga.App. 808, 189 S.E. 573 and, without regard to the soundness of certain statements made in division two of the opinion in that case, we do not consider that the rulings there made are applicable to facts such as here presented."
Now, I read you that code section because it is pleaded by the plaintiff — it is denied by the defendant — and there has been some testimony introduced touching or in respect to this statute. I charge you, gentlemen, in connection with this statute here that I have just read, that a violation of this statute by the defendants in this case would not warrant a recovery by the plaintiff. Whatever testimony has been presented to this jury in respect to a failure to stop at the scene of the accident — and it is for the jury to say whether the defendant stopped or failed to stop — is to be considered by the jury in connection with all of the other testimony in the case in determining whether or not the other acts of negligence that are set forth in the plaintiff's petition were done or not. As I say, a failure or a violation of this failure to stop section would not warrant a recovery."
W. R. Smallwood, the driver of another truck going toward Milledgeville after the accident, reached the scene of the accident very shortly after it happened and brought Hudson into Milledgeville where they located H. G. Posey, the night policeman in Milledgeville. Posey testified that Hudson told him about the accident and he instructed Hudson to call the sheriff of Baldwin County when he learned that the accident had happened outside the city limits, and Posey was present when the sheriff was called from his telephone. The sheriff of Baldwin County was dead at the time of the trial, but Osborne, the next friend of the plaintiffs, admitted on cross examination that on the day after the accident the sheriff told him (Osborne) the name of the truck company and the driver.
Five disinterested and unimpeached witnesses supported the story of the truck driver completely. It was undisputed that Snyder stopped only momentarily. Therefore, it was beyond Hudson's power to have rendered any assistance in getting Snyder to the hospital.
After this positive affirmative unimpeached evidence the plaintiffs offered the following negative testimony:
Mrs. Wood, the sister of the decedent, testified, not that the driver had hit and run away but merely that she looked back after they had come to a stop and after she had found her brother's arm was hurt and after Pryor, who was in the car with them, asked her to look back, but did not see the truck.
Pryor testified: "I did not have time to look and did not want to take time. I wanted to get him to the hospital. I walked around the front of the car . . When I asked Mrs. Wood to look she certainly did. He did not stop, or she told me she did not see him."
Mrs. Doris Johnson, who was awakened by the crash and in front of whose home Snyder brought his car to a stop, testified that she went to her window, but did not raise it and put her head out, doesn't know how far up the road she looked. She testified further: "I suppose our house is 40 or 50 feet back from the paved portion of the highway, and Mr. Brantley's house is within 10 or 15 feet. He is right on the road, his house is between me and my view up toward Miller's store. You can see up to the dirt road but you cannot see in front of his store."