Harris v. Cates

• Decision Date: 05 December 1961
• Docket Number: No. 39163,No. 1,39163,1
• Citation: Harris v. Cates, 105 Ga.App. 178, 123 S.E.2d 703 (Ga. App. 1961)
• Parties: R. L. HARRIS v. Nancy CATES, by Next Friend
• Court: Georgia Court of Appeals

Page 703

123 S.E.2d 703

105 Ga.App. 178

R. L. HARRIS v.Nancy CATES, by Next Friend.

No. 39163.

Court of Appeals of Georgia, Division No. 1.

Dec. 5, 1961.

Rehearing Denied Dec. 20, 1961.

Syllabus by the Court

1, 2, 4, 5.The overruling of general grounds of a motion for new trial and of special grounds, discussed in the opinion, excepting to charges given by the court, was not error.

3.Refusal to give a pertinent charge which set out a correct statement of law was reversible error.

6.Ordinary care for his own safety requires a pedestrian upon entering any public street to look out in every direction from which traffic might approach and to ascertain that it is safe to enter the street, and while crossing the street to keep a reasonable lookout for vehicles depending on all the circumstances at the time and place.While the charge excepted to could have been more suitably worded, it was not inconsistent with the above statement and was not error.

The plaintiff(defendant in error) sued the defendant(plaintiff in error) for personal injuries she received when, as she walked across the street at an intersection, she was hit by a truck driven by the defendant.The petition alleges that the defendant was negligent in many particulars.The defendant's answer alleges that the plaintiff's alleged injuries were caused solely by her own negligence, which was equal to or greater than defendant's alleged negligence; that plaintiff by the exercise of ordinary care could have avoided the consequences of defendant's alleged negligence.The trial resulted in a verdict of $12,000 for the plaintiff.The defendant made a motion for new trial on the general grounds, later adding six special grounds.The court overruled the motion for new trial and the defendant assigns error.

B. Hugh Burgess, Decatur, Edward E. Dorsey, C. B. Rogers, Powell, Goldstein, Frazer & Murphy, Atlanta, for plaintiff in error.

Charles H. Hyatt, Decatur, for defendant in error.

HALL, Judge.

1.The trial court did not err in overruling the motion for new trial on the general grounds.On some of the issues in this case the burden of proof was on the plaintiff, and on some it was on the defendant.The testimony of every party and witness who stated he or she saw that happened was attacked and weakened on cross-examination and by other means.The evidence on the important questions was in conflict.The brief of evidence shows that the plaintiff drew upon a blackboard at the trial a sketch of the intersection where the collision occurred.On many occasions, when testimony was elicited by use of this diagram and photographic exhibits, the witnesses stated where something was only by pointing or placing a piece of paper, indicating 'here' or 'there.'Hence the record does not reveal the exact testimony on important, close questions in the case.This court has no opportunity to observe the parties' or witnesses' manner of testifying.There was evidence which if believed would authorize the verdict.In these circumstances, this court cannot substitute its judgment for that of the jury or for that of the trial judge in ruling on the general grounds of the motion for new trial.He-Po Gas Inc. v. Roath, 87 Ga.App. 827, 833, 75 S.E.2d 451;Adler v. Adler, 207 Ga. 394, 405, 61 S.E.2d 824.

2.Special ground 1 complains that the court charged, 'The driver of an automobile is bound to use reasonable care to anticipate the presence on the streets of other persons having equal rights with him to be there.'The defendant contends that the charge 'expressed, by implication, the opinion and instruction that the plaintiff had an equal right to be upon the street as had the defendant,' and 'this compelled the conclusion that the plaintiff was not negligent or that (if the plaintiff was negligent)the defendant was also negligent.'In O'Dowd v. Newnham, 13 Ga.App. 220, 225, 80 S.E. 36, 38, it is stated: 'We may start with the proposition, which is elementary, * * * that a pedestrian and the user of an automobile have equal rights upon public highways, and that each is to use the highways, bearing in mind the right of the other, and in such manner as not to injure the other.* * * One of the duties incumbent upon one who operates an automobile * * * is that of anticipating the presence upon the highway of other persons having rights to be there equal with his own. * * *'The court charged the substance of the first part of the above quotation as well as the part objected to.It charged also on each party's duty of care, and that if plaintiff's failure to exercise due care caused her injuries or if, 'by the exercise of due care, she could have avoided the consequences to herself of defendant's negligence, if any there was, the plaintiff could not recover.'

We do not interpret the charge objected to as expressing an opinion as to the relative rights or the negligence of either party at the time and under all of the facts and circumstances in evidence; and certainly the whole charge made it clear these questions were to be resolved by the jury.This charge was not error.

3.Ground 2 complains that the court refused to give the following request to charge: 'I charge you that the opinion evidence introduced in this case was not conclusive or controlling.It is submitted to you, Gentlemen of the jury, merely for whatever you may think it worth.You may, upon review of the facts in the case disregard entirely the opinion of any witness, expert or nonexpert.'The plaintiff contends that this request was incomplete 'in that it nowhere stated that it [opinion evidence] could be considered as evidence in the case.'This contention is not sound.The requested charge is taken from a charge given in Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 4, 5 S.E.2d 214, where expert and nonexpert opinion was in evidence.The full charge on this subject reported in that case is 24 lines in length.It is true that immediately preceding the portion which defendant requested be charged in the present case is the statement that 'The law allows you to receive and consider it, along with all the other evidence in the case, in making your verdict.'However, the very words of defendant's request dealt with opinion 'evidence', and would have instructed that such evidence 'is submitted to you, Gentlemen of the jury, merely for whatever you may think it worth.'These words embody the meaning that opinion evidence 'could be considered as evidence in the case.'

Plaintiff contends further that the charge was error in that it excluded the rule 'that opinion and expert testimony is intended to aid the jury in coming to a correct conclusion on the subject.'The plaintiff cites cases which include statements to the effect that opinion testimony is intended to aid the jury.However, we do not think that the omission of such a statement from the requested charge rendered it incomplete or incorrect.

'It is the indisputable...