Etheridge Motors, Inc. v. Haynie

• Decision Date: 02 April 1963
• Docket Number: Nos. 39998,No. 1,40011,s. 39998,1
• Citation: 107 Ga.App. 674,131 S.E.2d 212
• Parties: ETHERIDGE MOTORS, INC. v. Tarpley P. HAYNIE. Tarpley P. HAYNIE v. ETHERIDGE MOTORS, INC
• Court: Georgia Court of Appeals

Page 212

131 S.E.2d 212

107 Ga.App. 674

ETHERIDGE MOTORS, INC. v. Tarpley P. HAYNIE.

Tarpley P. HAYNIE v. ETHERIDGE MOTORS, INC.

Nos. 39998, 40011.

Court of Appeals of Georgia, Division No. 1.

April 2, 1963.

Rehearing Denied April 24, 1963.

Syllabus by the Court

1. A charge of the court which has the effect of instructing the jury as to what act or failure to act under the circumstances would constitute ordinary care or lack thereof is error. It is the province of the jury to make that determination.

2. A charge not adjusted to the evidence and which is calculated to be harmful to the complaining party is error.

For a statement of the pleadings in this case see Etheridge Motors, Inc. v. Haynie, 103 Ga.App. 676, 120 S.E.2d 317. Upon a trial the evidence supported the allegations of the petition, but the jury returned a verdict for the defendant. Plaintiff filed his motion for new trial, later amending by adding four special grounds complaining of errors in the charge. The general grounds are abandoned.

Merritt & Pruitt, Glyndon C. Pruitt, Buford, for plaintiff in error.

Joseph E. Cheeley, Buford, Hamilton Lokey, Atlanta, for defendant in error.

EBERHARDT, Judge.

1. The motion was granted on ground 5 only, wherein error was assigned upon the charge that 'if the plaintiff, by the exercise of ordinary care, and by the use of his sight, could have avoided the negligence of the defendant, if any, and if you find from the evidence in this case that the plaintiff herein has failed to use his sense of sight, then he could not be entitled to recover, even though you might find that the defendant was negligent.' (Emphasis added.) Apparently the trial judge concluded that this charge had the effect, in the event the jury should find that the plaintiff had failed to use his sense of sight to discover defendant's negligence, of removing the issue of comparative negligence from their consideration, and further had the effect of instructing the jury that the exercise of ordinary care would necessarily include his use of the sense of sight.

We agree that the charge was erroneous. It is the province of the jury to determine what act or failure to act may have constituted ordinary care under the circumstances. 'For the judge to tell the jury that under such circumstances it was the duty of the defendant 'to keep a reasonable lookout,' 'to give warning signals such as will apprise them of an approaching train,' and 'to moderate the speed of its train so as to enable them to escape injury,' was in effect telling them what acts constituted ordinary care * * * and as such, was erroneous. [ci...