Jacks v. Lambert

• Decision Date: 27 May 1965
• Docket Number: No. 1,41320,Nos. 41319,s. 41319,1
• Citation: Jacks v. Lambert, 111 Ga.App. 763, 143 S.E.2d 215 (Ga. App. 1965)
• Parties: M. E. JACKS et al. v. Mrs. M. R. LAMBERT. Mrs. M. R. LAMBERT v. M. E. JACKS et al
• Court: Georgia Court of Appeals

Page 215

143 S.E.2d 215

111 Ga.App. 763

M. E. JACKS et al. v. Mrs. M. R. LAMBERT.

Mrs. M. R. LAMBERT v. M. E. JACKS et al.

Nos. 41319, 41320.

Court of Appeals of Georgia, Division No. 1.

May 27, 1965.

Matthews, Maddox, Walton & Smith, Oscar M. Smith, W. E. Davidson, Jr., Rome, for plaintiffs in error.

Clower & Royal, E. J. Clower, Rome, for defendant in error.

Syllabus Opinion by the Court

JORDAN, Judge.

Following the trial of an action for damages resulting from a rear-end collision, a verdict was rendered for the defendants. The testimony in the record is undisputed that the plaintiff, Mrs. M. R. Lambert, driving her husband's car, had stopped in obedience to a traffic light at an intersection, her car being the last in a line of three or four cars which had also stopped in front of her in obedience to said traffic light; that immediately after the light turned green, the traffic began to proceed through said intersection and Mrs. Lambert had put her car in first gear and was proceeding at approximately five to ten miles per hour, and had gone approximately five or ten feet, when her car was struck from the rear by the car driven by one of the defendants. The plaintiff, correctly taking the position that there was no evidence in the record of any negligence on her part, filed a motion for new trial in which she excepted in special ground seven to the court's instruction: 'If both sides are equally negligent, you cannot award damages,' on the ground that this erroneously injected into the case the question of comparative or contributory negligence. The trial court granted a new trial on this ground. The defendants in the main bill of exceptions except to the grant of a new trial and the plaintiff in the cross bill assigns error on the denial of the remaining grounds of the amended motion. Held:

1. The law is well established that where there is no evidence at all of any negligence on the part of the plaintiff, an instruction on this subject is error. Brooke v. Bowers, 91 Ga.App. 543, 86 S.E.2d 341; Gleason v. Rhodes Center Pharmacy, 94 Ga.App. 439(1), 95 S.E.2d 293; Jackson v. Camp & Brown Produce Co., 92 Ga.App. 359, 362(3), 88 S.E.2d 540. '[I]t is error to charge upon any issue which is not supported by evidence.' Investors Syndicate v. Thompson, 172 Ga. 203(2b), 158 S.E. 20. The trial court did not err in granting a new trial because of the error contained in this portion of the charge.

2. The court further instructed the jury: 'All...