Mitchell v. Gay, 41074

• Decision Date: 18 June 1965
• Docket Number: No. 41074,No. 3,41074,3
• Citation: 111 Ga.App. 867,143 S.E.2d 568
• Parties: Martha Jane MITCHELL v. A. W. GAY
• Court: Georgia Court of Appeals

Page 568

143 S.E.2d 568

111 Ga.App. 867

Martha Jane MITCHELL v. A. W. GAY.

No. 41074.

Court of Appeals of Georgia, Division No. 3.

June 18, 1965.

Syllabus by the Court

1. The court's charge substantially in terms of Code § 105-603 stated a correct and complete principle of law, and if plaintiff desired further amplification on the point of law charged, she should have submitted an appropriate written request for additional instructions.

2. The charge considered in this division of the opinion is not an incorrect statement of law and was not inapplicable to the case.

3. A material misstatement of the contentions of the parties is prejudicial error and requires the grant of a new trial.

4. Under the pleadings and the evidence in this case, the court erred in failing to charge the jury the substance of Code § 105-401.

5. In the absence of request, it is not error to fail to charge upon an issue which is not made by the pleadings, even if the issue is supported by some evidence.

6. There was no reversible error in excluding evidence offered to prove a fact which was admitted or fully established by other evidence.

7. The trial judge did not abuse his discretion in limiting the plaintiff's cross examination of one of defendant's witnesses.

8. An assignment of error upon remarks made by the court in a colloquy between the court and counsel and which allegedly expressed or intimated the court's opinion on the merits of the case, will not be considered where the movant failed to avail herself of a motion for mistrial when the remarks were made.

9. The court's misstatement of defendant's contentions considered in this division of the opinion was harmless to plaintiff.

Martha Jane Mitchell brought this action against A. W. Gay, individually and doing business as A. W. Gay Stables, to recover damages for personal injuries allegedly sustained as a consequence of defendant's negligence.

Upon trial of the case evidence showed that defendant was in possession of certain land upon which he maintained stables for horses. As part of his business he conducted lessons in horseback riding. Plaintiff was a student in one of the riding classes and paid defendant $3.50 per lesson. During plaintiff's third lesson, Mrs. David Allen, defendant's agent and instructor of the riding class, led a group of students including plaintiff from a pasture into the bridle path where plaintiff was injured. Plaintiff testified that she was an inexperienced rider and had not previously ridden on this path. 'As I entered the trail, I noticed in turning that left curve there were bushes there * * * up to about where my knee would be on that tall horse * * * There was this tree limb up on the right * * * and I put my hand up * * * to shield my eyes * * * I leaned over to the left to avoid the tree limb.' At this point the path inclined steeply downward from its entrance, and a log lay across the path, placed there for use as a 'jump.' 'I was very intent on trying to do the right thing or to stay on the horse * * * The last thing I remember before I fell off was, obviously the horse took the jump or started to take the jump anyway. Because I remember the saddle hitting me as I fell off.' Plaintiff landed on her back, fracturing a vertebra. She charges that the defendant was negligent in failing to maintain the trail in a safe condition and in failing to warn her of the condition of the trail.

The jury returned a verdict for the defendant, and judgment was entered for defendant. Plaintiff excepts to the judgment of the trial court denying her amended motion for new trial.

Vernon W. Duncan, Marietta, for plaintiff in error.

T. J. Long, Ben Weinberg, Jr., Atlanta, Scott S. Edwards, Jr., Marietta, for defendant in error.

BELL, Presiding Judge.

1. Special ground 4 of the motion for new trial assigns error upon a portion of the court's instructions to the jury in that the court should have given in connection therewith further instructions to render complete and correct the charge given.

This portion of the instructions dealt with the effect of the negligence of the plaintiff, if any, upon her right to recover. In it the court charged, among other things, 'If the plaintiff could have exercised ordinary care and avoided the consequence to herself by the defendant's negligence, if there was such, she would not be entitled to recover.' Plaintiff complains that the charge given was erroneous and incomplete in that the court failed to instruct the jury that plaintiff's duty to exercise ordinary care to avoid the consequences of defendant's negligence would not arise until 'after the alleged negligence of the defendant became apparent or should reasonably have been apparent.'

The quoted charge is substantially in terms of Code § 105-603. It has been held that a charge on the avoidance doctrine in the language of the Code section is a complete and correct principle of law, though it does not specifically instruct the jury that the plaintiff's duty to use ordinary care to avoid the consequences of defendant's negligence does not arise until that negligence is apparent or the circumstances are such that a reasonably prudent person would apprehend defendant's negligence. Collum v. Georgia Ry. & Electric Co., 140 Ga. 573(2), 79 S.E. 475; Brown v. Mayor and Council of Athens, 47 Ga.App. 820(4), 171 S.E. 730; Crawford v. Western & Atlantic R. R. Co., 51 Ga.App. 150, 151-152, 179 S.E. 852. See also: Howard v. Georgia Ry. & Power Co., 35 Ga.App. 273(5), 133 S.E. 57; Maner v. Dykes, 55 Ga.App. 436, 441, 190 S.E. 189; Oast v. Mopper, 58 Ga.App. 506, 508(4), 199 S.E. 249; Bell v. Camp, 109 Ga.App. 221, 224(3), 135 S.E.2d 914.

If the plaintiff desired further amplification on the point of law charged, she should have submitted an appropriate written request for additional instructions.

This ground of the motion for new trial shows no error.

However, we wish to call to the attention of the trial judiciary the worthwhile recommendation of our esteemed and beloved colleague the late Judge Robert L. Russell, who wrote that, 'Because of the confusion which may easily result in a failure to distinguish to the jury between that failure to exercise ordinary care on the plaintiff's part which will bar his recovery and that which will diminish but not bar his right to damages, it is always the better practice to charge in connection therewith that the duty to exercise due care to avoid the consequences of the defendant's negligence does not arise until that negligence is apparent or would have been apprehended by the plaintiff in the exercise of reasonable diligence.' Wright v. Concrete Co., 107 Ga.App. 190, 198(5), 129 S.E.2d 351, 356.

2. Ground 5 objects to the following statement made by the court in defining and charging the jury upon proximate cause: 'Where the negligence of a party, the defendant is not the proximate cause of the injury, but the injury is traceable to the imposition of a separate and independent agency, the defendant cannot be held liable for the injury.'

The extract, when viewed with the charge as a whole and particularly when considered with the portions given immediately in connection with it, is not an incorrect statement of law and was not inapplicable to the case.

There is no merit in this ground.

3. Ground 6 complains that the court erred in misstating one of defendant's contentions in charging the jury as follows: 'Now, gentlemen, the defendant contends that any injury suffered by this plaintiff was brought about by her own failure to look out and by negligence on her part and he denies being responsible for any negligence or any other damages claimed against him by the plaintiff.' In fact, defendant in his answer did not make the contention that plaintiff's injury was caused 'by her own failure to look out,' nor is there extant in the record any evidence which might support this contention.

'A material misstatement of the contentions of the parties is prejudicial error. * * * As a general rule a charge which misstates the contentions of the prevailing party, and tends to confuse the jury as to those contentions and as to the real issues in the case, in such a manner as would permit the prevailing party to recover [or to defend successfully] on a contention he did not make and not authorized by the evidence, necessitates the grant of a new trial.' City of Summerville v. Woodard, 97 Ga.App. 662, 664-665(2), 104 S.E.2d 507, 509 and citations; Porter v. Bland, 105 Ga.App. 703, 705(1), 125 S.E.2d 713; Wheeler v. State Highway Dept., 106 Ga.App. 323, 324, 126 S.E.2d 808.

The charge objected to in this ground was prejudicial error.

4. According to ground 7 the court erred in failing to charge the jury, either generally or in substance, Code § 105-401, which provides, 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.'

'[T]he duty to keep the premises safe (not reasonably sfae) exists as to all persons who for any lawful purpose come upon the premises at the express or implied invitation of the owner.' Knudson v. Duffee-Freeman, Inc., 99 Ga.App. 520, 526, 109 S.E.2d 339, 343 and citations; Findley v. Lipsitz, 106 Ga.App. 24, 26(1), 126 S.E.2d 299. See Mandeville Mills v. Dale, 2 Ga.App. 607, 610-611, 58 S.E. 1060. Without question plaintiff was an invitee on the defendant's premises and thus within the class of persons to whom this duty was owed by defendant. Plaintiff's petition alleged, and the evidence showed, certain unsafe conditions upon the premises, and therefore, the pleadings and evidence together authorized, and even required, that the court submit for the jury's consideration the issue whether by allowing these conditions to exist the defendant breached this duty to the...