Tate v. Gibson Products Co., 51533

• Decision Date: 26 January 1976
• Docket Number: No. 51533,No. 1,51533,1
• Citation: 137 Ga.App. 615,224 S.E.2d 465
• Court: Georgia Court of Appeals
• Parties: R. E. TATE et al. v. GIBSON PRODUCTS COMPANY

Page 465

224 S.E.2d 465

137 Ga.App. 615

R. E. TATE et al. v. GIBSON PRODUCTS COMPANY.

No. 51533.

Court of Appeals of Georgia, Division No. 1.

Jan. 26, 1976.

Rehearing Denied Feb. 16, 1976.

Johnson & Casper, Michael R. Casper, Gainesville, for appellants.

Greer, Sartain & Carey, Tifton Greer, J. Nathan Deal, Gainesville, for appellee.

STOLZ, Judge.

In this action by a husband and wife for damages for her slipping and falling, while a customer of the defendant's, on the defendant's concrete ramp as a result of its alleged negligent construction and maintenance by the defendant, the plaintiffs appeal from the verdict and judgment for the defendant.

1. The charge objected to in enumerated error 1 was comprised of instructions approved in Boyd v. Boyd, 173 Ga. 139, 144(2), 159 S.E. 674 and Richards v. Harpe, 42 Ga.App. 123(12), 155 S.E. 85. The trial judge elsewhere clearly defined the term preponderance of evidence and fully set forth the method of determining where the preponderance lay. Mere repetition of these correct and applicable principles of law was not such error as requires reversal, since it did not take color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury. Mullis v. Chaika, 118 Ga.App. 11(3),162 S.E.2d 448.

2. The defendant's eighth request to charge, based on language in Pilgreen v. Hanson, 94 Ga.App. 423, 425, 94 S.E.2d 752, was as follows: 'The plaintiff cannot recover against the defendant without proving that the alleged defect in the ramp which the plaintiff contends caused her to slip, if you find from the evidence it was a patent defect, was for some reason not connected with any negligence on the plaintiff's part not patent or obvious to the plaintiff.' (Emphasis supplied.) The judge's omission of the italicized phrase in giving the above requested charge, made the charge illogical, as the appellants contend, as it did not complete the sentence, hence did not convey the true meaning of the principle involved. This error was not reversible as contended in enumerated error 2, however, since the omission was supplied by other instructions, such as, 'If the alleged defect is not of such a nature and character as to be necessarily seen in the exercise of ordinary care by the person coming upon the premises, then the owner and occupier may be found guilty of negligence, if you find he was negligent or knowingly maintained the premises in such a fashion as to deviate from the standard of ordinary care.'

3. In enumerated error 3 it is contended that the charge-'if the plaintiff did look where she was walking and the alleged defect was clearly visible and could have been seen by anyone who did look, the plaintiff cannot recover.' (emphasis supplied)-erroneously substituted the standard of 'anyone' for that of the 'ordinary prudent person.' The correct standard was given elsewhere in the charge; therefore, this enumerated error is without merit.

4. The judge charged the jury, 'if you find from the evidence in this case that the plaintiff has testified to facts in one instance and also testified that she does not know them to be true, this neutralizes her testimony and proves nothing.' Enumerated error 4 contends that this charge is inconsistent with another charge given, to the...