Green v. Gaydon
| Decision Date | 21 May 1985 |
| Docket Number | No. 69844,69844 |
| Citation | 331 S.E.2d 106,174 Ga.App. 796 |
| Parties | GREEN v. GAYDON et al. |
| Court | Georgia Court of Appeals |
Emily Sherwinter, Atlanta, for appellant.
James A. Dunlap, James E. Brim III, Gainesville, for appellees.
The 14-year-old son of appellant Linda Jane Green died as a result of injuries he sustained when his motorcycle collided with a tractor-trailer operated by appellee Donald Gaydon, who was in the employ of appellee National Freight, Inc., at the time. This appeal is from a judgment entered on a jury verdict in favor of the appellees in a wrongful death action against them.
The collision occurred as Gaydon was driving away from his residence, which was located on a dirt road, and was approaching an intersection with a paved road at a slow speed. There was evidence that appellant's son had pulled onto the paved road in front of another vehicle and was looking behind him when he turned onto the dirt road and collided with the tractor. Held:
1. Appellant contends that the trial court erred in refusing to admit evidence that Gaydon had been told by a representative of either the sheriff's department or the post office not to park the tractor on the road outside his residence unless he unhitched the trailer and left it at a barn on the paved road, ostensibly because the dirt road was too narrow to allow other vehicles to pass. There was evidence that the road was wider where the collision occurred than at appellant's residence, which was a substantial distance from the site of the collision.
Generally, it is not permissible to show conditions at places other than the one in question for the purpose of establishing that the condition at the place in question is dangerous. See MARTA v. Tuck, 163 Ga.App. 132(5), 292 S.E.2d 878 (1982); Underwood v. Atlanta & West P.R. Co., 105 Ga.App. 340(5), 124 S.E.2d 758 (1962). Because the condition of the road at the point of the collision was different from its condition at appellant's residence, the evidence which appellant sought to elicit was irrelevant to the issue of whether Gaydon's conduct at the time and place of the collision constituted negligence. Accordingly, the trial court did not err in refusing to admit the evidence.
2. Appellant contends that the trial court erred in refusing to give two requests to charge; however, these requests to charge are not contained in the record. The party asserting error has the duty to show it by the record, not by assertions in briefs. See York v. Miller, 168 Ga.App. 849, 310 S.E.2d 577 (1983); DeJong v. Stern, 162 Ga.App. 529(2), 292 S.E.2d 115 (1982). Appellant has made no contention that the record is incomplete, nor has she attempted to supplement the record, pursuant to OCGA § 5-6-41(f). Consequently, this enumeration of error presents nothing for review. Moreover, even if the language of the two requests to charge was in fact as set forth in the appellant's brief, the trial court would not have erred in refusing to grant them. The first specified that a motorist approaching children on the street must consider their tenderness of age and exercise greater caution than that necessary on the discovery of adults in the same situation. See generally Kennedy v. Banks, 117 Ga.App. 197, 199, 160 S.E.2d 208 (1968). However, the deceased in the present case was 14 years old and was thus responsible for both his crimes and his torts. See OCGA §§ 16-3-1, 51-11-6; Hatch v. O'Neill, 231 Ga. 446(1), 202 S.E.2d 44 (1973); Brady v. Lewless, 124 Ga.App. 858, 186 S.E.2d 310 (1971). It follows that the principle of law at issue was not adjusted to the evidence. Accord Townsend v. Moore, 165 Ga.App. 606(2), 302 S.E.2d 398 (1983); Central R. Co. v. Phillips, 91 Ga. 526(2), 17 S.E. 952 (1893). The other request pertained to the last clear chance doctrine, a principle upon which the trial court did instruct the jury, although not in the precise language allegedly requested. The trial court also accurately charged the jury with request to contributory and comparative negligence and other relevant principles. Where the trial court accurately and fully charges the relevant law, it is not error to fail to charge in the exact language requested. Accord Ponder v. Ponder, 251 Ga. 323(3), 304 S.E.2d 61 (1983). Jury instructions must...
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