City of Macon v. Yaughn, 33288

• Decision Date: 15 March 1951
• Docket Number: No. 1,No. 33288,33288,1
• Parties: CITY OF MACON v. YAUGHN
• Court: Georgia Court of Appeals

Page 369

64 S.E.2d 369

83 Ga.App. 610

CITY OF MACON v. YAUGHN.

No. 33288.

Court of Appeals of Georgia, Division No. 1.

March 15, 1951.

Rehearing Denied March 28, 1951.

Syllabus by the Court.

1. The trial court did not err in admitting in evidence an excerpt from the Carlisle Table on Mortality, and in thereafter, in the charge, calling the jury's attention to that evidence, and instructing the jury that they might use it or not as they saw fit, notwithstanding there may have been no positive and direct evidence that the plaintiff's injuries were permanent in nature.

2. Testimony that the defendant 'scrapes its streets as often or oftener than other communities similarly situated,' without showing facts upon which such conclusion was based was not admissible.

3. The evidence authorized the verdict.

Mrs. Mable Yaughn sued the City of Macon for $10,000 damages for personal injuries alleged to have been sustained by her while she was riding as a passenger in the rear seat of an automobile being operated along Waterville Road, a street of the City of Macon. Said injuries resulted, she alleged, when the automobile in which she was riding was run into an unlighted and unguarded hole in the unpaved street, which, she alleged, had been negligently allowed by the defendant to remain, which hole was unknown to the plaintiff and to the driver of the automobile, and which caused a part of the underside of the automobile to collide with a manhole adjacent to said hole in the street, and she alleged that when the automobile struck the manhole, it was brought to an abrupt stop, throwing the plaintiff against the back of the front seat inflicting the injuries sued for. She alleged that the injuries thus received were permanent in character, that they had necessitated certain described treatments, and expenses, and would continue to cause her expense and loss in certain particulars enumerated. She further alleged the filing of a claim and demand for damages with the defendant in accordance with the requirements of the Code, § 69-308. The jury returned a verdict for the plaintiff for $2,000 and judgment was entered thereon. The defendant made a motion for a new trial on the general grounds which was amended by the addition of three special grounds. The trial court overruled the motion and the exception here is to that judgment.

Edward S. Sell, Jr., L. Bayne Barfield, Macon, for plaintiff in error.

Morgan & Gostin, Macon, for defendant in error.

WORRILL, Judge.

1. The first and third special grounds of the motion for a new trial complain because the court permitted the introduction in evidence of an excerpt from the Carlisle Table of Mortality over the objection of the defendant, that neither the pleadings nor the evidence raised any question as to the permanency of the plaintiff's injuries, that there was no evidence that the injuries were permanent, and because the court charged the jury, 'First, though, gentlemen, I charge you that certain mortality tables have been introduced in evidence and they will be out with you along with the other evidence. You may use these or not, as you see fit. The purpose of the mortality table is to show the expectation in life of the average person of a given age, as determined by the compilers of this table. However, what is the expectancy of this plaintiff is for you to say.' This portion of the charge is objected to on the ground that it was confusing to the jury and prejudicial to the movant because it fails to restrict the jury to finding the plaintiff's life expectancy only on condition that they previously find the alleged injuries to be permanent, and further that in connection therewith the court failed to instruct the jury to reduce any recovery for future pain and suffering, in the event they should find the injuries were permanent, to its present cash value.

These grounds of the motion are without merit. While it may be conceded that there was no direct evidence upon the trial that the plaintiff's injuries were permanent, nevertheless, there was evidence which would have authorized the jury to find that the injuries were inflicted on March 9, 1948, and that the plaintiff's pain and suffering had continued up until the date of the trial, on May 11, 1950, and would continue thereafter for an indefinite time. The plaintiff had testified also as to her age, her occupation and work prior to the injury and of her inability to work regularly and at the same work, or to earn the same earnings as before the injury. Such testimony was solely for the jury's consideration in determining the nature and extent of...