Butler v. Stewart, 41447

• Decision Date: 20 September 1965
• Docket Number: No. 2,No. 41447,41447,2
• Citation: 112 Ga.App. 293,145 S.E.2d 47
• Parties: Dorothy BUTLER v. Homer E. STEWART, Jr
• Court: Georgia Court of Appeals

Page 47

145 S.E.2d 47

112 Ga.App. 293

Dorothy BUTLER v. Homer E. STEWART, Jr.

No. 41447.

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1965.

Syllabus by the Court.

1. The jury having found for the plaintiff, any error in charging the jury as to plaintiff's negligence barring recovery, and as to accident, is harmless error. Bowen v. Holland, 184 Ga. 718(2), 193 S.E. 233; Beecher v. Farley, 104 Ga.App. 785 (3), 123 S.E.2d 184; Bell v. Camp, 109 Ga.App. 221, 135 S.E.2d 914, disapproving a contrary ruling in Riggs v. Watson, 77 Ga.App. 62, 67(7), 47 S.E.2d 900, and in Tallent v. McKelvey, 105 Ga.App. 660, 662(2), 125 S.E.2d 65.

2. 'Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae.' Code § 38-305.

3. While the plaintiff adduced proof of pain and suffering and the incurring of medical expenses in the amount of $316.63 and that she paid $89.18 to get her car repaired, the jury was authorized to find that a considerable portion of this expense and the pain and suffering was not attributable to the collision involved here, but was primarily attributable to a prior collision in which plaintiff suffered a similar injury, and since the evidence authorized a finding that plaintiff's negligence contributed to the collision and to her injury in the present case, we cannot say that the finding of the jury in the amount of $300 was so small as to show bias and prejudice on the part of the jury. In Hunt v. Western & Atlantic R. R., 49 Ga.App. 33(1), 174 S.E. 222, there was no evidence of negligence on the part of plaintiff; and, in McLendon v. Floyd, 59 Ga.App. 506, 1 S.E.2d 466, the undisputed evidence showed that the plaintiff, if entitled to recover was entitled to recover more than the amount of the verdict.

4. Accordingly, it must be held that the trial court did not err in overruling plaintiff's motion for new trial.

Smith, Spears & Sears, Ted D. Spears, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell & Moye, Sidney F. Wheeler, Atlanta, for defendant in error.

PANNELL, Judge.

Only Headnote 2 requires elaboration. Plaintiff was stopped at a red signal light on a slight incline upward in the direction of the light. Plaintiff testified that the car of the defendant struck her car in the rear while the light was still red and that her car had not rolled backward. The defendant testified that he had stopped behind the car of the plaintiff while the light was red; that the sum was shining directly into his eyes but he could tell when the light turned green and 'traffic started to move', and when it did he began to move forward, at which time a passenger in his car cried out, 'Watch out, that car is rolling backward'; that defendant hit his brakes, but nevertheless 'tapped' plaintiff's automobile. Plaintiff claimed general damages for pain and suffering and special damages for medical bills and automobile damage in the amount of $405.81. There was a verdict for plaintiff in the amount of $300, and she brings her case before this court for review on the overruling of a motion for new trial on the general grounds and on the grounds that the verdict was so grossly inadequate as to show bias on the part of the jury against the plaintiff, and complaining of charges of the court relating to comparative negligence, as to negligence of the plaintiff which would bar recovery, and as to accident.

The only evidence as to any negligence on the part of the plaintiff is the testimony of the defendant as to the declarations of his passenger, indicating that the plaintiff had released her brakes and was rolling backwards toward the car of the defendant. Ordinarily, hearsay evidence, even if admitted without objection, has no probative value. Eastlick v. Southern Ry. 116 Ga. 48, 42 S.E. 499; Kemp v. Central of Georgia Ry. Co., 122 Ga. 559(2), 560, 50 S.E. 465; Miller & Co. v. McKenzie, 126 Ga. 746, 55 S.E. 952. However, there are exceptions to this rule as where such statement, composing the hearsay, is a part of the res gestae. See Code § 38-305. As was stated in Atlanta Consol. St. Ry. Co. v. Bagwell, 107 Ga. 157(5), 33 S.E. 191, it was held: 'The cries or exclamations of bystanders upon seeing an accident about to occur may be proved to explain the state of mind and conduct of a person hearing them, and who is injured in the accident'; and in Central of Georgia Ry. Co. v. Dumas, 44 Ga.App. 152(1), 160 S.E. 814, it was held: 'Where a driver of an...