Carlton Co. v. Poss
| Decision Date | 11 June 1971 |
| Docket Number | No. 45836,No. 3,45836,3 |
| Citation | 183 S.E.2d 231,124 Ga.App. 154 |
| Parties | CARLTON COMPANY et al. v. Jimmy L. POSS |
| Court | Georgia Court of Appeals |
Perry, Walters, Langstaff, Lippitt & Campbell, Jesse W. Walters, Albany, for appellants.
Reinhardt, Ireland, Whitley & Sims, Glenn Whitley, Tifton, Divine, Busbee & Wilkin, W. T. Divine, Jr., Albany, for appellee.
Syllabus Opinion by the Court
Defendants in a personal injury action appeal from the judgment and from the denial of their motions for new trial and judgment n.o.v.
In a misting rain at 12:30 a.m. on a relatively straight and level stretch of I-75, plaintiff's automobile ran into the rear end of defendants' vehicle (a rig consisting of a truck cab pulling a 10,000 lb. 'track press'). There was expert testimony that defendants' vehicle was in the right lane, that plaintiff had been straddling the center-line at the point of collision, and that plaintiff had not applied brakes. (However, one officer said he believed plaintiff had also been squarely in the right lane.) Unfortunately, plaintiff suffered a complete loss of memory concerning the event so the only evidence consists of the testimony of defendant truck driver and of the four investigating officers.
The driver testified that he was traveling at only 10 to 15 miles per hour because his engine had 'quit' a few minutes previously; that he had not hit the brakes but had immediately switched on his 4-way flasher lights; and that he was attempting to slow down enough to pull over onto the grass shoulder without jack-knifing. Two investigating officers, however, testified that the driver told them that night at the scene, that he had run out of gas and was attempting to coast to the next exit. Three of the four officers said they saw a blinking tail light on the rig (the other was smashed in the collision) but none of them recall when they first noticed it or whether the front blinkers were going.
1. The evidence was sufficient to support the verdict.
2. Defendants contend the court erred in charging that where a loss of memory attributable to an accident renders the survivor incapable of testifying, it is presumed, in the absence of evidence to the contrary, that he exercised due care. There is no Georgia law on this subject, but the great weight of authority supports this presumption. See Annotation, 141 A.L.R. 872 (1942) and subsequent case service; 29 Am.Jur.2d § 215.
3. However, the court did err in allowing lengthy testimony, over defendants' continued objection, concerning a trooper's experience while driving on I-75. There was no similarity of conditions shown between this experience and the collision in litigation. In fact, the testimony showed there were great differences. While the relevancy of other occurrences is ordinarily within the sound discretion of the court, 'it is necessary that the conditions of the things compared be substantially similar.' Green, Georgia Law of Evidence, p. 172, § 68. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court's discretion can operate. Dunn v. Beck, 144 Ga. 148, 86 S.E. 385; Sammons v. Webb, 86 Ga.App. 382(6), 71 S.E.2d 832; Standard Paint & Lead Works v. Powell, 27 Ga.App. 691, 109 S.E. 513.
Plaintiff contends the defendants waived any objection to this testimony by cross examining the witness on the same subject matter. This is a more difficult point to answer. Unfortunately, there exists in Georgia a line of cases purporting to stand for this bald proposition. In many of these cases it is merely dictum or makeweight since the objection was defective for some other reason. In some it has been the specific holding, but given only in a short paragraph which essentially paraphrased the 'rule' and said it was applicable. The opinions give no indication of how the cross examination actually proceeded. We believe this sweeping rule, which trial lawyers on either side have found unreasonably restrictive, is long overdue for examination and clarification. As Justice Brandeis once said, 'The first remedy for this situation is to go back to the place where you lost your way and start again from that point.'
The solution is to be found in practical considerations. The proposition undoubtedly had some original, worthy purpose, but we have found no Georgia case describing what it might be. It is certainly contrary to the great weight of authority. See 89 C.J.S. Trial § 661; 53 Am.Jur., Trial § 143; 1 Wigmore on Evidence §§ 15 and 18(D), (3d ed. 1940).
It seems likely that waiver of objection by cross examination developed as an offshoot of the general rule that where a party introduces the same evidence as that to which he objects, he has abandoned the objection. This is a reasonable rule and obviously applies where the evidence is brought in by direct examination of another witness. It is also reasonable where the cross...
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Uniroyal Goodrich Tire Co. v. Ford
...[supra]. 'Without a showing of substantial similarity, the evidence is irrelevant as a matter of law....' Carlton Co. v. Poss, 124 Ga.App. 154, 155 (183 SE2d 231) (1971). See also Hayes v. Gary Burnett Trucking, 203 Ga.App. 693(1) (417 SE2d 676) (1992)." (Emphasis supplied.) General Motors ......
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General Motors Corp. v. Moseley
...635 (1993). "Without a showing of substantial similarity, the evidence is irrelevant as a matter of law...." Carlton Co. v. Poss, 124 Ga.App. 154, 155, 183 S.E.2d 231 (1971). See also Hayes v. Gary Burnett Trucking, 203 Ga.App. 693(1), 417 S.E.2d 676 In the instant case, counsel for the pla......
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Maloy v. Dixon
...he must do in the right way.' Atlantic Coast Line R. Co. v. Brown, 82 Ga.App. 889, 892, 62 S.E.2d 736, 739. Cf. Carlton Co. v. Poss, 124 Ga.App. 154(1), 183 S.E.2d 231. '(I)f the evidence introduced by the plaintiff fails to make out a prima facie case against the (defendant), the circumsta......
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Mills v. Norfolk Southern Ry. Co.
...is irrelevant as a matter of law and there is nothing upon which the court's discretion can operate. [Cits.] Carlton Co. v. Poss, 124 Ga.App. 154, 155(3), 183 S.E.2d 231 (1971); see also Hayes v. Gary Burnett Trucking, 203 Ga.App. 693, 694(1), 417 S.E.2d 676 (1992), overruled on other groun......