Carroll v. Hayes

• Decision Date: 23 October 1958
• Docket Number: No. 37353,No. 1,37353,1
• Citation: 105 S.E.2d 755,98 Ga.App. 450
• Parties: Elizabeth D. CARROLL et al., Executors, v. Connie HAYES
• Court: Georgia Court of Appeals

Page 755

105 S.E.2d 755

98 Ga.App. 450

Elizabeth D. CARROLL et al., Executors, v. Connie HAYES.

No. 37353.

Court of Appeals of Georgia, Division No. 1.

Oct. 23, 1958.

Syllabus by the Court.

The evidence authorized the verdict and, no reversible error being shown by the amended motion for new trial, the judgment of the trial court denying the plaintiff a new trial was not error.

This is the second appearance of this case before this court. On the first appearance, Hayes v. Dicks, 95 Ga.App. 11, 96 S.E.2d 627, it was held that the evidence did not demand a verdict for the defendant. The writ of error on that appeal assigned error on the first grant of a new trial to the plaintiff. On the second trial the evidence was substantially the same as that adduced on the first and it would indeed serve no useful purpose to set such evidence forth again here. For a very thorough statement of the pleadings and evidence in the case see Hayes v. Dicks, supra. Suffice it to say that Edward P. Dicks, Sr. was injured in an automobile collision between an automobile being driven by him and an automobile being driven by the defendant. On the second trial, the one now under consideration, the jury returned a verdict for the defendant, and the plaintiff's amended motion for new trial was denied. After the first trial and before the second trial Edward P. Dicks, Sr., died, and the executor of his estate, having been made a party, proceeded with the case.

Harris, Chance & McCracken, Otis W. Harrison, Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Augusta, for plaintiffs in error.

Congdon, Holley & Smith, Wm. P. Congdon, Augusta, for defendant in error.

NICHOLS, Judge.

The evidence on the second trial was substantially the same as that adduced on the first trial, the testimony of the deceased plaintiff having been read to the jury from the transcript of the first trial, and, while a verdict for the defendant was not demanded, it was authorized. Accordingly, the usual general grounds of the amended motion for new trial are without merit.

2. Special ground numbered 6 of the amended motion for new trial appears, from a note attached by the trial court, to be an exception to an excerpt from the charge given at the request of the movant.

Where the movant has requested the trial court to give a certain charge, whether the charge is harmful to the movant or not, he cannot complain. See Laing v. Bodiford, 25 Ga.App. 460, 103 S.E. 743; Echols v. State, 94 Ga.App. 898(6), 96 S.E.2d 521.

In the brief of counsel for the plaintiff it is contended that in reality exception is not taken to the charge given, but that exception is taken to the charge given because the trial court failed to charge other principles of law in addition thereto.

As shown above the movant cannot complain of the charge given, and it is no ground of error to give a correct charge because additional instructions were not given. See Payne v. Young, 27 Ga.App. 370(4), 108 S.E. 312; Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 456, 88 S.E.2d 809.

3. Special ground 5 complains that the trial court erred in refusing to allow Lybrand Hutto, a police officer who investigated the collision to give opinion testimony as to the speed of the defendant's automobile at the time of the collision. The witness did not see the collision but apparently arrived at the scene of the collision before either vehicle had been moved. The witness testified that he was a traffic policeman for the City of Augusta, Georgia, on the date of the collision, that he had investigated quite a few other accidents and that he had seen collisions before.

While it has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury (Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784), it is also well established that whether a witness has such learning and experience in a particular art, science, or profession as to entitle him to be designated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court and such discretion will not be disturbed unless it is manifestly abused. See, Clary v. State, 8 Ga.App. 92(2), 68 S.E. 615; Whatley v. Henry, 65 Ga.App. 668, 681, 16 S.E.2d 214; Hinesley v. Anderson, 75 Ga.App. 394, 398, 43 S.E.2d 736, and citations.

The evidence in the present case does not show that the trial court manifestly abused its discretion in refusing to allow the witness to testify as an expert.

The contention is made that under the authority of Rentz v. Collins, 51 Ga.App. 782(4), 181 S.E. 678, and other similar cases the witness should have been permitted to state his opinion as to the speed of the vehicle driven by the defendant based upon the facts to which he testified.

The witness testified, in addition to what is set forth above, that he arrived at the scene of the collision after the collision had taken place (he did not see either vehicle in motion), that his investigation showed that the front of the automobile driven by the defendant struck the right side of the vehicle being driven by Edward P. Dicks, Sr., that the impact turned Mr. Dicks' automobile over on its left side against an iron pole approximately 15 feet from the point of impact, that Mr. Dicks was driving a 1949 Hudson and the defendant a 1941 Oldsmobile, that as to the area where the collision took place: 'The only thing I could go by was approximately where her care was sitting and the dirt that was in the street,' that the automobile being driven by the plaintiff traveled approximately 45 feet after entering the intersection to the point of impact while the defendant's traveled only 15 feet into the intersection to the point of impact, that the Hayes' automobile was in its right hand lane, and that the Dicks' automobile was a heavy type automobile.

While on cross-examination the witness testified as to other facts, at the time the opinion was excluded from the evidence only the above facts had been adduced.

The distance each vehicle traveled into the intersection before reaching the point of impact would not show spped, nor would the lane in which either was driving. While the weight of one of the...