Bagley v. Akins
| Decision Date | 23 September 1964 |
| Docket Number | No. 40912,No. 1,40912,1 |
| Parties | Pearl W. BAGLEY v. Bonnell AKINS |
| Court | Georgia Court of Appeals |
Joseph H. Briley, Macon, Kimzey & Kimzey, Herbert B. Kimzey, Cornelia, for plaintiff in error.
Whelchel, Dunlap & Gignilliat, William P. Whelchel, Gainesville, for defendant in error.
Syllabus Opinion by the Court
1. In an action seeking recovery of damages for personal injuries based on tortious negligence of the defendant where the defendant's answer denies any negligence and claims the injuries of plaintiff were solely the fault of plaintiff, a charge by the court to the jury that 'If the plaintiff by the exercise of ordinary care could have avoided the consequences to herself caused by the defendant's negligence, if you find the defendant was negligent, the plaintiff is not entitled to recover,' is not subject to the attack that it is not sound as an abstract principle of law or that it is erroneous because a charge on comparative negligence in the absence of a request was not also given. See Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 33 S.E. 961; Seaboard Air-Line Ry. v. Andrews, 140 Ga. 254(3), 78 S.E. 925; Collum v. Georgia Ry. & Electric Co., 140 Ga. 573, 574(2), 79 S.E. 475; Western & Atlantic R. R. Co. v. Smith, 145 Ga. 276, 277(5), 88 S.E. 983; Powell v. Berry, 145 Ga. 696, 697(5), 89 S.E. 753, L.R.A.1917A, 306.
2. While it is error to charge a jury in a tort action to reduce the damages for future pain and suffering to a present value, Southern Ry. Co. v. Bottoms, 35 Ga.App. 804, 134 S.E. 824, such charge given in the present case was harmless error, the jury having found for the defendant.
3. Where the following question was asked of and the following answer given by the defendant: , an assignment of error in the motion for new trial on the refusal of the court to grant plaintiff's request that the witness 'be instructed to answer the question' shows no cause for reversal.
4. In such a case where the defendant rented a boat to the plaintiff, a charge of the court (referring to the defendant), 'he is but a private carrier for hire and required to exercise due care and diligence in performance of the duty imposed upon him by the contract; that is to...
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