Hurst v. J.P. Colley Contractors, Inc., 65923
| Decision Date | 21 June 1983 |
| Docket Number | No. 65923,65923 |
| Citation | 167 Ga.App. 56,306 S.E.2d 54 |
| Parties | HURST et al. v. J.P. COLLEY CONTRACTORS, INC. |
| Court | Georgia Court of Appeals |
Robert B. Hocutt, Atlanta, for appellants.
C. Jerry Willis, LaGrange, Harry J. Bryant, Knoxville, Tenn., for appellee.
This appeal is from a jury verdict in favor of plaintiff/appellee for property damage sustained as a result of a vehicular accident involving a truck being driven by an agent of appellee and another truck being driven by appellant Hurst and owned by appellant Neel's Wholesale Produce Company. The four enumerations of error relate to the trial court's instructions on last clear chance, required brakes (OCGA § 40-8-50) (Code Ann. § 68-1715), and horns and warning devices (OCGA § 40-8-70) (Code Ann. § 68-1716).
1. Appellants first contend that the evidence in this case does not warrant a charge on last clear chance, and that the court committed a substantial error in charging this issue. Relying upon Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 670, 88 S.E.2d 6, appellants argue that the evidence shows without dispute that Hurst "had no then existing ability to avoid the collision" when he first realized the peril created by appellee's vehicle. This contention is without merit. Hurst estimated that he was 200-250 feet behind appellee's vehicle when he first realized the emergency created by appellee's vehicle. The jury also heard testimony from an accident reconstructionist that Hurst should have been able to bring his truck to a stop within 185 feet if traveling at 50 miles per hour after allowing for reaction and mechanical lag time. There was additional evidence from which the jury could have concluded that Hurst was negligent in failing to avoid the collision. The court's instruction on last clear chance was amply supported by the evidence.
2. Appellants' second enumeration of error challenges the substance of the trial court's charge on last clear chance. In response to this enumeration, appellee contends that appellants failed in the trial court to take proper exception to the charge on this ground. The relevant colloquy between the court and appellants' counsel after the charge was as follows: The record does not contain a transcript of the hearing and argument on the charge. Appellee contends that the record fails to evidence a specific ground for objection to the charge, as is required by OCGA § 5-5-24(a) (Code Ann. § 70-207), thus leaving "nothing for this court to review." Adams v. Wright, 162 Ga.App. 550(5), 293 S.E.2d 446.
Unfortunately, we must agree that appellants failed to take proper exception to the court's charge on last clear chance, although the colloquy quoted above clearly indicates that a charge conference was held and that the charge was discussed at that time. However, proper objection must be made after the charge and before the return of a verdict (DOT v. Brand, 149 Ga.App. 547(6), 254 S.E.2d 873), even though appellant objects vigorously during an off the record charge conference. Caudell v. Sargent, 118 Ga.App. 405, 164 S.E.2d 148.
Appellants contend that the colloquy between court and counsel clearly demonstrated that the court understood their objections to the charge and did not want to hear more specific objections. However, there is no indication that the court prevented counsel from perfecting the record in this regard. Additionally, this court is at a loss based on this record to determine the precise nature of the objections made by appellants before the trial court. Thus, we do not know whether the objections to the language of the instruction urged on appeal were brought to the attention of the trial court. "[O]ne purpose of [OCGA § 5-5-24] is to afford the trial judge an opportunity to correct any errors in his instructions without the necessity of an appeal." Fleet Transport Co. v. Cooper, 126 Ga.App. 360, 361, 190 S.E.2d 629....
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