Boutelle v. White, (No. 19393.)

• Decision Date: 24 August 1929
• Docket Number: (No. 19393.)
• Citation: 40 Ga.App. 415,149 S.E. 805
• Parties: BOUTELLE. v. WHITE et al.
• Court: Georgia Court of Appeals

40 Ga.App. 415

149 S.E. 805

BOUTELLE.

v.WHITE et al.

(No. 19393.)

Court of Appeals of Georgia, Division No. 2.

Aug. 24, 1929.

Rehearing Granted Sept. 2, 1929. Judgment Adhered to Oct. 4, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Bartow County; C. C. Pittman, Judge.

Suit by J. F. Boutelle, by next friend, against A. G. White and others. Judgment for defendants, and plaintiff brings error. Affirmed.

G. H. Aubrey, of Cartersville, and H. R. Lee and Geo. & John L. Westmoreland, all of Atlanta, for plaintiff in error.

Neel & Neel, of Cartersville, for defendants in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1, 2] 1. The trial judge has no right to exclude from the courtroom, during the taking of testimony, a party to the case on trial. St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786 (1), 39 S. E. 483; Georgia Railroad, etc., Co. v. Tice, 124 Ga. 459 (3), 52 S. E. 916, 4 Ann. Cas. 200; Knox v. Harrell, 26 Ga. App. 772(1), 107 S. E. 594, 108 S. E. 117. It is a matter entirely within the discretion of the trial judge as to whether he will require that the testimony of a party to the case be taken before the taking of the testimony of the party's witnesses. Tift v. Jones, 52 Ga. 538(4). If the trial judge could abuse this discretion by refusing to require that the testimony of a party to the case be taken before th, e testimony of his witnesses is taken, it does not appear that this discretion was abused in this case.

2. In a suit for the recovery of damages resulting from the alleged negligent operation by the defendant of an automobile along a highway, a request made by the plaintiff to charge the jury as follows: "The degree of diligence which must be exercised in a particular exigency is such as is necessary to avoid injuring others, and in considering whether the operator of the automobile exercised due diligence, or, by failure to exercise due diligence, was guilty of negligence, is a question of fact for the jury, taking into consideration the character of the instrumentality which he operated, and the danger attached to its operation if improperly used, as well as the character of the highway being traversed and the probability of inflicting injury if all needed care was not used in the operation of the machine, " which was substantially in the language of O'Dowd v. Newnham, 13 Ga. App. 220(3), 80 S. E. 36, was, in the language of Giles v. Voiles, 144 Ga. S53, 88 S. E. 207, in referring to a charge in...