Overnite Transp. Co. v. Hart, s. 47238
| Decision Date | 16 June 1972 |
| Docket Number | 47239,Nos. 47238,No. 3,s. 47238,3 |
| Citation | 126 Ga.App. 566,191 S.E.2d 308 |
| Parties | OVERNITE TRANSPORTATION COMPANY v. Claude E. HART. Claude E. HART v. OVERNITE TRANSPORTATION COMPANY |
| Court | Georgia Court of Appeals |
Nall, Miller & Cadenhead, A. Paul Cadenhead, James S. Owens, Jr., Atlanta, for appellant.
Kyle Yancey, Atlanta, for appellee.
Syllabus Opinion by the Court
Plaintiff, while at defendant's terminal as an invitee for the purpose of delivering and unloading freight on July 24, 1968, was injured when defendant's employee, unloading freight from a trailer, struck him with a forklift truck. Being dissatisfied with the verdict in his favor, plaintiff filed his motion for new trial, ground 6 of which was sustained by the trial court and a new trial ordered, all other grounds being overruled. In No. 47238, the main appeal, defendant, with a certificate of review, complains of the sustaining of ground 6 of the motion; and in No. 47239, the cross appeal, plaintiff complains of the overruling of the other grounds. Held:
1. The Main Appeal. It was plaintiff's position during the course of the litigation that the injuries he sustained on July 24, 1968, caused him to fall from his trailer while unloading freight in 1969, thereby sustaining further injuries for which he also sought to hold defendant, and the connection between the two incidents was thus a vital issue to plaintiff's claim and to defendant's defense. The trial court allowed defendant to introduce the following portion of Dr. Rothenberg's deposition: Plaintiff objected to this testimony on the ground that it was a conclusion of the doctor. However, as the trial court observed at the trial, in the context here 'he felt' must be taken as synonymous with 'he was of the opinion,' and the doctor, rather than stating a conclusion of his own, was simply repeating an opinion stated to him by the plaintiff that his fall in 1969 was not related to the back injury sustained on defendant's premises in 1968. While normally a witness will not be allowed to testify as to the opinion of others (Sullivan v. Hugly, 32 Ga. 316(1); Wynes v. State, 182 Ga. 434, 435, 185 S.E. 711; Camp v. Ledford, 103 Ga.App. 197, 198, 119 S.E.2d 54), the opinion here was not that of a third person but of the plaintiff, was inconsistent with his position at the trial, was admissible as an admission, and the doctor's statement was not subject to the objection that it was a conclusion or hearsay. Code, § 38-403; Green, Georgia Law of Evidence §§ 233, 234, 236, 237, 268 and cases cited; Central of Ga. R. Co. v. Mosely, 112 Ga. 914(3), 38 S.E. 350. Of course, the opposite party may explain his out-of-court admission or statement, as plaintiff attempted to do, and it was for the jury to say whether he had done so, or to what extent. Kitchen v. Robbins, 29 Ga. 713. Hence it was error to grant a new trial on ground 6 of plaintiff's motion for new trial.
2. The Cross Appeal. (a) Plaintiff complains of a charge on comparative negligence. However, plaintiff did not object to this charge even though the jury specifically requested it during their deliberations, and there was sufficient evidence to authorize the jury to conclude that plaintiff, who was familiar with the premises and the methods of unloading, was in some degree negligent in standing and talking in a dangerous area with his back to the open end of a trailer being unloaded.
(b) In view of jury questions as to which injuries were caused by the 196...
To continue reading
Request your trial
-
Summer v. Allison
...within the ambit of Code § 38-1708, express his own opinion, but under no circumstances (except as stated in Overnite Transportation Co. v. Hart, 126 Ga.App. 566(1), 191 S.E.2d 308) may he testify as to what the intent, purpose or contemplation of another may have been in a given situation.......
-
White v. Hammond
...are harmless since there was a verdict in his favor. Maloy v. Dixon, 127 Ga.App. 151(2b), 193 S.E.2d 19; Overnite Transp. Co. v. Hart, 126 Ga.App. 566(2c), 191 S.E.2d 308. As I construe the evidence, and as we are required to do on appeal, the verdicts returned by the jury cannot be deemed ......
-
Everson v. Franklin Discount Co.
...as admissions of a party-opponent. The fact that they may be in opinion form does not change this result. Overnite Transportation Co. v. Hart, 126 Ga.App. 566, 191 S.E.2d 308 (1972). (3) Franklin Discount argues that, under the maxim, "he who would have equity must do equity," the Eversons ......