Butler v. Reville, 39909
| Decision Date | 13 February 1963 |
| Docket Number | No. 39909,No. 3,39909,3 |
| Citation | 107 Ga.App. 345,130 S.E.2d 161 |
| Parties | Betty J. BUTLER v. Jack D. REVILLE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
When a written request to charge is substantially covered by the charge given by the court, the failure to charge as requested is not reversible error when there is no assignment of error complaining that the request to charge was not given in its exact language.
Cail & Benton, Kenneth Cail, Andrew Benton, Savannah, for plaintiff in error.
Adams, Adams & Brennan, Edward T. Brennan, Savannah, for defendant in error.
1. The trial of this action by a guest passenger against the driver of an automobile which collided with the rear of the automobile in which she was riding as it made a right turn, resulted in a verdict for the defendant (defendant in error). The plaintiff (plaintiff in error) assigns error on the trial court's judgment overruling her motion for new trial.
Special ground 1 complains of the following charge: 'I charge you that the standard of care and diligence required by law of both the plaintiff in this case and the driver of the automobile in which she was a passenger is the same. It is ordinary care and biligence. Ordinary diligence is that degree of care which is exercised by ordinary prudent persons under the same or similar circumstances. The absence of such diligence is termed 'ordinary negligence'.' The plaintiff's petition alleged: 'That the aforesaid collision was caused solely and wholly by the negligence of the defendant named herein without any negligence on the part of the plaintiff contributing thereto.' The defendant's answer denied this allegation. It is true there was no evidence of any negligence on the part of the plaintiff contributing to the collision, nor any evidence that the plaintiff was in any manner in control of the automobile in which she was a passenger. Since the charge was not authorized by the evidence the question is whether it could have misled the jury adversely to the plaintiff. Nelson v. Huber & Huber Express, Inc., 79 Ga.App. 721, 723, 54 S.E.2d 462.
The court later on charged that the plaintiff 'is entitled to recover if she proves any one or more of the grounds [of negligence claimed in her petition] to your satisfaction under the rules which I have given you in charge'; and gave a full charge on the rule to the effect that any negligence of the driver of the automobile in which the plaintiff was a passenger cannot be imputed to the plaintiff nor defeat or diminish her recovery; and 'The duty to use care in this case is, as I have stated, upon the driver of the plaintiff's automobile in this case and the defendant.' The charge as a whole made it clear what the issues in the case were and that there was no issue of any...
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