Garner v. Sharp

• Decision Date: 06 January 1965
• Docket Number: No. 41008,No. 3,41008,3
• Citation: 111 Ga.App. 47,140 S.E.2d 511
• Parties: Donald L. GARNER, by Next Friend, v. W. P. SHARP et al
• Court: Georgia Court of Appeals

Page 511

140 S.E.2d 511

111 Ga.App. 47

Donald L. GARNER, by Next Friend, v. W. P. SHARP et al.

No. 41008.

Court of Appeals of Georgia, Division No. 3.

Jan. 6, 1965.

Rehearing Denied Jan. 25, 1965.

Webb & Fowler, W. Howard Fowler, Lawrenceville, Wheeler, Robinson & Thompson, Emory F. Robinson, Gainesville, for plaintiff in error.

Peek, Whaley & Blackburn, J. Corbett Peek, Jr. Glenville Haldi, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas E. Joiner, Barry Phillips, Atlanta, for defendant in error.

Syllabus Opinion by the Court

JORDAN, Judge.

This was a suit to recover damages for personal injuries sustained by the plaintiff when his automobile struck the rear of a tractor being operated by one of the defendants on a public road in Gwinnett County. The jury returned a verdict for the defendants and the exception is to the denial of the plaintiff's amended motion for new trial. Held:

1. There being some evidence to show that the tractor with which the plaintiff's automobile collided was on the road and was in motion and proceeding in the same direction as the plaintiff, it was not error, as contended in special ground 1 for the trial court to charge the law relating to vehicles overtaking and passing vehicles proceeding in the same direction. Akin v. Randolph Motors, Inc., 95 Ga.App. 841(2), 99 S.E.2d 358. Under the evidence in this case it was for the jury to determine whether or not the defendants' vehicle had been on the roadway a sufficient length of time for these provisions of Code Ann. § 68-1635 to be applicable, and it was proper for the court to submit them for the jury's consideration.

2. Special ground 2 which assigns error on an excerpt from the charge, not on the ground that the charge given was incorrect, but on the ground that the court erred in failing to charge another principle of law in connection therewith, is without merit. Exceptions can not be taken to a charge that other and additional instructions are not given the jury. The exception should not be to the charge, but to the failure to charge.' Hardwick v. Georgia Power Co., 100 Ga.App. 38(4), 110 S.E.2d 24. 'It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case that some other correct and appropriate instruction was not given.' Lumpkin v. State, 152 Ga. 229(3), 109 S.E. 664. The charge given stated a correct, complete and applicable principle of law and that which it is contended should have been charged in immediate connection therewith was properly covered elsewhere in the charge. Americus, Preston & Lumpkin R. Co. v. Luckie, 87 Ga. 6, 13 S.E. 105.

3. While it is proper in a negligence action, where the plaintiff has made out a prima facie case, for the court to charge the jury that the burden is on the defendant to establish by a preponderance of the evidence that the plaintiff's injuries were caused by his own negligence or contributory negligence if the defendant relies on such defense (Stewart v. Mynatt, 135 Ga. 637(2), 70 S.E. 325; McCrackin v. McKinney, 52 Ga.App. 519, 183 S.E. 831), it is not incumbent upon the court to so charge in the absence of a timely written request. Jackson v. Merritt Hardware Co., 26 Ga.App. 747(3b), 107 S.E. 394; Askew v. Amos, 147 Ga. 613(5), 95 S.E. 5. Special ground 3 which complains of the failure of the trial court to...