Burton v. Brown
| Decision Date | 18 April 1960 |
| Docket Number | No. 38177,No. 2,38177,2 |
| Citation | 101 Ga.App. 527,114 S.E.2d 386 |
| Parties | Maudestine E. BURTON v. Viola BROWN |
| Court | Georgia Court of Appeals |
Erwin, Nix, Birchmore & Epting, Eugene A. Epting, Athens, for plaintiff in error.
Stephens, Fortson, Bentley & Griffin, Edwin Fortson, Athens, for defendant in error.
Syllabus Opinion by the Court.
1. While there is no longer a necessity that a special ground of a motion for a new trial be complete and understandable within itself (Ga.L. 1957, pp. 224, 232), each ground of a motion should, nevertheless, point out or make reference to such parts of the record or brief of the evidence by page number, or otherwise, as are necessary to an understanding of the error complained of, and a special ground of a motion for a new trial which fails to incorporate therein some reference by which the necessary parts of the record or the brief of the evidence may be found by the court, is too incomplete to present any question for decision. Harris v. State, 96 Ga.App. 395, 399 (2), 100 S.E.2d 120; Maxwell v. State, 97 Ga.App. 334, 336(1), 103 S.E.2d 162; Brown v. Carmanni, 100 Ga.App. 116, 122 (5), 110 S.E.2d 543; Childers v. State, 100 Ga.App. 255, 258(1), 110 S.E.2d 697.
2. Special grounds of a motion for a new trial which require for their consideration reference to the evidence or to other parts of the record, should, under the rule announced in the preceding headnote, at least refer to the place in the record or in the brief of evidence where the other matters necessary for their consideration may be found. Accordingly, special ground 1 of the motion for new trial which assigns error on a portion of the charge in that it, in effect, instructed the jury that the plaintiff was under no duty to use ordinary care to prevent injury to the defendant (and cross-complainant), and special ground 2 assigning error on another portion of the charge on the ground, in effect, that it excluded from the jury's consideration all of the allegations of negligence in the defendant's cross-action except one, both of which require for their full consideration reference to the brief of the evidence to ascertain whether there was any evidence tending to show that the plaintiff did fail to use ordinary care to prevent injury to the defendant, and whether there was any evidence to support the other allegations of negligence charged against the plaintiff in the cross-action, and which grounds do not have set forth therein or refer to the place in the brief of the evidence where such necessary portions of the evidence may be found, are too incomplete to show harmful or reversible error, and the trial court did not err in overruling them. County of Bibb v. Ham, 110 Ga. 340(1), 35 S.E. 656; Mayor of Macon v. Humphries, 122 Ga. 800(5), 50 S.E. 986; Davis v. Davis, 95 Ga.App. 65 (2), 96 S.E.2d 622.
3. Special ground 3 complains of the refusal to give the jury the following requested charge: 'I charge you that if you should believe from the evidence in this case that the plaintiff, Mrs. Viola Brown, could have, in the exercise of ordinary care, and by keeping a proper lookout ahead, observed the movements and position of the automobile of defendant, Burton, in time to control the speed and movements of her automobile so as to avoid colliding with the Burton automobile, and if you find that she failed to exercise ordinary care in respect to such matters, the plaintiff would not be entitled to recover.' It is contended that this request was pertinent and applicable to the issues in the case and that the court nowhere else instructed the jury the substance of it. This request did not correctly state the legal proposition sought by the defendant to be charged, and the court did not err in refusing to instruct the jury in accordance with it. The mere failure of the plaintiff to exercise...
To continue reading
Request your trial
-
Underwood v. Atlanta & W. P. R. Co.
...77 Ga.App. 463, 489, 490-491, 49 S.E.2d 90; Fortenberry & Sons v. Malmberg, 97 Ga.App. 162, 177, 102 S.E. 2d 667; Burton v. Brown, 101 Ga.App. 527, 528, 114 S.E.2d 386; Southern Ry. Co. v. Daniell, 102 Ga.App. 414, 417, 116 S.E.2d Georgia at an early time abandoned the common law rule that ......
-
Seay v. State
...whom he recognized as being present at the truck when it was seen by him in Harold Chancey's yard. This ground is incomplete, Burton v. Brown, 101 Ga.App. 527(1, 2), 114 S.E.2d 386, because it fails to show either in the ground itself or by reference to the record that the proper foundation......
-
Kapplin v. Seiden
...Maxwell v. State, 97 Ga.App. 334, 336(1), 103 S.E.2d 162; Brown v. Carmanni, 100 Ga.App. 116, 122(5), 110 S.E.2d 543; Burton v. Brown, 101 Ga.App. 527(1), 114 S.E.2d 386. Accordingly, a ground of a motion for a new trial complaining of the exclusion of evidence offered by the movant, which ......
-
Murray v. Woods
...it will be seen that it fails to meet the requirement of specifying the evidence necessary for its consideration. Burton v. Brown, 101 Ga.App. 527(2), 114 S.E.2d 386. But, additionally, an affirmance must result because the jury here dealt with a situation in which the rule of comparative n......